Whittingham v Director of Public Prosecutions
[2019] VCC 83
•8 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01524
Indictment No. G1071100.1
| MARK WHITTINGHAM | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2018 | |
DATE OF RULING: | 8 February 2019 | |
CASE MAY BE CITED AS: | Whittingham v DPP | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 83 | |
APPLICATION TO CHANGE PLEA
REASONS FOR RULING
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Subject:CRIMINAL LAW
Catchwords: Application to change plea
Legislation Cited:
Cases Cited:
Ruling:Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr M Cookson | Mr J Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
1 This is an application by Mark William Whittingham (‘the applicant’) to change the plea he entered before me on 8 September 2017 in relation to charges 4, 5, 6 and 7 on indictment number G10711001.1, being four charges of obtain financial advantage by deception. This application forms part of an extremely complex number of interrelated proceedings. In the course of those proceedings these charges were referred to collectively as ‘the Westpac charges’.
2 According to the amended summary of prosecution opening dated 8 February 2018,[1] these charges relate to fraudulent credit account applications made by the applicant to the Westpac Banking Corporation (‘Westpac’).
[1]Plea exhibit P6.
3 Charge 4 on the indictment charges that the applicant at Wonthaggi in Victoria between 28 September and 12 October 2015 dishonestly obtained for himself a financial advantage, namely the provision of two credit accounts in the total sum of $75,000, from Westpac by deception by falsely representing that:
(a) he had resided at 10 Hobson Place, Inverloch, Victoria for a period of 3 years;
(b) his stated annual and monthly income was true and genuine;
(c) the 2014 individual tax return prepared on behalf of Mark William Logie (a name used by the applicant from time-to-time, which was his wife’s maiden name) was true and genuine;
(d) the 2015 individual tax return prepared on behalf of Mark William Logie was true and genuine; and
(e) the income particulars in the Australian Taxation Office (‘ATO’) notice of assessment issued on 28 September 2015 and addressed to ‘Mark W Logie’ were true and genuine.
4 Charge 5 on the indictment charges that the applicant at Wonthaggi in Victoria on 8 October 2015 dishonestly obtained for himself a financial advantage, namely the provision of equipment finance in the sum of $68,411, from Westpac by deception by falsely representing that:
(a) the 2014 individual tax return prepared on behalf of Mark William Logie was true and genuine;
(b) the 2015 individual tax return prepared on behalf of Mark William Logie was true and genuine; and
(c) the income particulars in the ATO notice of assessment issued on 28 September 2015 and addressed to ‘Mark W Logie’ were true and genuine.
5 Charge 6 on the indictment charges that the applicant at Wonthaggi in Victoria on 22 October 2015 dishonestly obtained for himself a financial advantage, namely the provision of equipment finance in the sum of $87,000, from Westpac by deception by falsely representing that:
(a) the 2014 individual tax return prepared on behalf of Mark William Logie was true and genuine;
(b) the 2015 individual tax return prepared on behalf of Mark William Logie was true and genuine; and
(c) the income particulars in the ATO notice of assessment issued on 28 September 2015 and addressed to ‘Mark W Logie’ were true and genuine.
6 Charge 7 on the indictment charges that the applicant at Wonthaggi in Victoria on 14 January 2016 dishonestly obtained for himself a financial advantage, namely the provision of equipment finance in the sum of $154,300, from Westpac by deception by falsely representing that:
(a) the 2014 individual income tax return prepared on behalf of Mark William Logie was true and genuine;
(b) the 2015 individual income tax return prepared on behalf of Mark William Logie was true and genuine; and
(c) the income particulars in the ATO notice of assessment issued on 28 September 2015 and addressed to ‘Mark W Logie’ were true and genuine.
7 At the plea hearing the prosecutor relied upon and tended an initial document titled ‘Prosecution Summary for Purposes of a Plea Hearing before His Honour Judge Trapnell on Wednesday 7th February 2018’, which is dated 7 February 2018 (Exhibit P1).[2] By leave, an ‘Amended Prosecution Summary for Purposes of a Plea Hearing before His Honour Judge Trapnell on Wednesday 7th February 2018’ dated 8 February 2018 was filed with the Court, which corrected some minor errors.
[2]Plea exhibit P6.
8 At the plea hearing the applicant’s then counsel, Mr Skehan, when asked by me whether I could treat this document as a ‘statement of agreed facts’ said: ‘This is agreed, my client has read it and agreed to it’.[3] The opening was then read in open court by the prosecutor in the applicant’s presence with no objection from him or his counsel.
[3] Plea transcript (‘PT’) 1.30–2.5. Hereafter I will refer to the amended prosecution opening as ‘the summary of agreed facts’.
9 The summary of agreed facts states that on 17 September 2015 the applicant applied for an ‘Altitude Black’ MasterCard with a credit limit of $25,000 under the name Mark William Logie. The applicant provided a false monthly income figure of $120,000. The applicant nominated the Westpac branch in Wonthaggi as the card delivery location.
10 The bank’s procedures required that before the credit card could be activated, the applicant had to attend a branch and provide a copy of a valid identity document and proof of his income.
11 On 28 September 2015 the applicant attended at the Westpac branch in Wonthaggi where he provided a staff member with a copy of the 2015 notice of assessment issued by the ATO in the name of ‘Mr Mark W Logie’.
12 In the summary of agreed facts it states that this notice of assessment ‘displayed the false taxable income figure of $1,371,850 as proof of income’. The agreed summary continues, ‘Based on the false representation made by the accused to Westpac, both credit card accounts were then activated’.
13 The other credit card account referred to is a ‘55 day platinum’ Visa card with a credit limit of $25,000, which the applicant applied for on 10 September 2015. Previous to 17 September 2015, the applicant had attempted to collect this card at the Westpac branch in Wonthaggi. However, he was unsuccessful owing to the fact that he did not have with him at the time correct proof of income documents.
14 On 9 October 2015 the applicant completed an application for a ‘flexi loan’ in relation to a deposit he wanted to pay on a property he was considering purchasing in South Yarra. This application was submitted on behalf of the applicant using the same personal and income details that had previously been provided to the bank in relation to the two credit cards. This application was approved on 12 October 2010 and a loan account in the sum of $25,000 was activated, thereby giving the applicant access to those funds.
15 These agreed facts give rise to charge 4 on the indictment. Schedule B to the indictment makes clear that the $75,000 is comprised of the total credit limits on the 55 day platinum Visa card, the Altitude Black MasterCard and the loan account.
16 So far as the Visa card account is concerned, as at 17 March 2016 that account was overdrawn and all credit balance had been extinguished. The summary of agreed facts states that this amount ‘remains unpaid’.
17 So far as the ‘Altitude Black’ MasterCard account is concerned, by 16 November 2015 that account was overdrawn and all credit had been used. The summary of agreed facts states that the amount of $25,000 ‘remains unpaid’.
18 So far as the flexi loan credit account is concerned, by the end of the first statement period (being 8 November 2015) that account was overdrawn and remains outstanding.
19 Charges 5, 6 and 7 on the indictment relate to fraudulent car loan applications made by the applicant to Westpac. On 8 October 2015, the applicant purchased a 2015 Land Rover Discovery sport station wagon from Berwick Jaguar Land Rover for $68,411.
20 In order to fund this purchase the applicant applied for a loan in this amount from Westpac under the identity of ‘Mark Logie’. Once again, as part of the loan application process the applicant had to provide proof of income documents. The documents relied upon by the bank were those previously provided by the applicant, namely the 2015 notice of assessment issued by the ATO and the 2014 and 2015 individual tax returns that were prepared by an accounting firm, but were not signed off or lodged by that firm.
21 The summary of agreed facts continues, ‘Based on the fraudulent information provided by the accused, the loan application was approved’. The loan was subsequently drawn down by the applicant on 8 October 2015 and used to complete the purchase and take possession of the motor vehicle on that date. The payments required under the loan agreement had fallen into arrears by the time the motor vehicle was seized by police on 10 March 2016. These facts give rise to charge 5 on the indictment.
22 According to the summary of agreed facts a second vehicle was ‘fraudulently purchased by the applicant under the identity of Mark Logie’. This was a Mercedes Benz vehicle which was purchased by the applicant on 22 October 2015 from a Mercedes Benz dealership in Mornington for $87,000.
23 In order to fund this purchase the applicant applied for a loan in this amount from Westpac under the identity of ‘Mark Logie’. Once again, the application was assessed and processed by an officer of the bank relying on the proof of income documents which had previously been provided to the bank by the applicant.
24 The summary of agreed facts continues, ‘Based on the fraudulent information previously provided by the accused, the loan application was approved’. Settlement of this loan occurred on 22 October 2015, when the $87,000 was disbursed by Westpac to Mercedes Benz, Mornington, thereby completing the purchase and enabling the applicant to take possession of the vehicle on that date. Once again, the loan repayments required under this loan agreement had fallen into arrears before the vehicle was seized by police on 10 March 2016. These facts give rise to charge 6 on the indictment.
25 Charge 7 relates to a third vehicle which, according to the summary of agreed facts, was ‘fraudulently purchased by the accused under the identity of Mark Logie’. This relates to a 2015 Range Rover sport wagon which was purchased by the applicant on 14 January 2016 from a Land Rover dealership in Gardenvale for the amount of $154,300.
26 Again, in order to fund this purchase the applicant applied for a loan from Westpac under the identity of ‘Mark Logie’ in the amount of $154,300. Once again, the officer dealing with the loan application did not require any additional proof of income documents on the basis that sufficient documents supporting the applicant’s asserted income were already in the bank’s possession.
27 The summary of agreed facts continues, ‘Based on the fraudulent information previously provided by the accused, the loan application was approved’. Settlement of this transaction occurred on 14 January 2016, when funds were disbursed by Westpac to the Land Rover dealership, thereby completing the purchase and allowing the applicant to take possession of the vehicle on 15 January 2016. Once again, payments under this loan agreement had fallen into arrears prior to the vehicle being seized by police on 10 March 2016. These facts give rise to charge 7.
28 The total amount fraudulently obtained from Westpac in relation to the purchase of these three motor vehicles is $309,711. The cars were recovered from the applicant and sold by Westpac in mitigation of its loss. The actual loss to Westpac is $192,794.60 in relation to both the credit cards and the three loan agreements.
29 The applicant was arrested and interviewed by police on 10 March 2016. He made no admissions and denied any wrongdoing during the record of interview.
30 Having been arraigned and pleaded guilty to the charges on the indictment on 8 September 2017, the plea hearing in relation to this proceeding was adjourned until after all matters the subject of trials were concluded. Accordingly, the plea hearing in this matter did not take place until 7 February 2018.
31 At that hearing the Crown was represented by Mr M Gibson SC with Mr A McKenry. The applicant was represented by Mr P Skehan with Ms S Bruhn instructed by Mr A Furstenberg of Furstenberg Law.[4] Mr Skehan is an experienced member of the Victorian Criminal Bar, as is Ms Bruhn. Moreover, Mr Furstenberg is an experienced accredited criminal law practitioner.
[4]Furstenberg Law became the practitioners on the record acting for the applicant on 30 January 2018.
32 At the time of the arraignment and plea in September 2017 Mr G Casement of counsel appeared for the applicant instructed by Mr Norton of Stary Norton Halphen. Mr Casement is a highly experienced member of the Victorian Criminal Bar and Stary Norton Halphen are among the leading criminal law specialist law firms in this State. From 26 October 2017 until shortly before 30 January 2018 Paul Vale Criminal Law were the solicitors on the record for the applicant. They are also a well-regarded specialist criminal law firm.
33 So far as the circumstances giving rise to the pleas of guilty in respect of these charges is concerned, it appears that discussions between Mr Whittingham’s legal representatives and the Crown prosecutor were in place at some stage prior to 30 August 2017.[5] On 4 September 2017, the twenty-first day of pre-trial hearings, I was advised by Mr Casement on the applicant’s behalf that he and Mr Gibson SC had been successful in resolving the Westpac proceeding.[6]
[5]Pre-trial transcript (‘PTT’) 1207.22–26, PTT1208.7–15.
[6]PTT 1449.25–1450.6.
34 On 5 September 2017 I was advised by Mr Casement that it was planned for the applicant to be arraigned on a plea indictment to take place on 8 September 2015,[7] the day he was in fact arraigned. Consequently, a number of days elapsed between the negotiated settlement of these four charges and the applicant’s eventual arraignment which gave him the opportunity to maturely consider the situation.
[7]PTT 1647.6–25.
35 On 8 September 2017 Mr Gibson SC filed a fresh indictment (G10711001.1)[8] and explained the effect of that indictment in open court. The applicant was duly arraigned and pleaded guilty to the charges the subject of this application. Mr Casement was present in court at that time.[9] Mr Casement said that he ‘expected’ that the plea would proceed on ‘agreed statement of facts’.[10]
[8]Criminal Procedure Act 2009 s 164.
[9]PTT1653.19–28.
[10]PTT1665.27–31.
36 On 8 September 2017 there was discussion regarding when the plea hearing would be conducted in relation to that indictment. Initially Mr Casement said he had instructions from the applicant for his ‘plea and sentence to occur in the shorter term rather than the longer term’.[11]
[11]PTT 1665.21–26.
37 It was agreed that at the very earliest the plea would be heard after the first of several trials, being the trial on indictment F10472832.2B, known as the ‘Kahan matter’. However, I reserved my position regarding whether this plea should be heard at the end of all trials involving the applicant.[12]
[12]PTT1661.3–T1666.27.
38 The trial in the Kahan matter commenced on 18 September 2017 with Mr Gibson SC prosecuting and Mr Casement appearing for the applicant. A jury was empanelled on that day. The jury in the trial of the Kahan matter was discharged before verdict for reasons which are not relevant to this application.[13]
[13]Kahan trial transcript (‘KTT’) 324.
39 On 16 October 2017 pre-trial argument was due to commence in the ‘loan trail trial’, indictment F1047832.1B. On that day Mr Casement advised me that ‘ethical considerations have arisen’ and he sought leave to withdraw from all matters involving the applicant that were listed before me. I understand Mr Casement’s instructing solicitors, Stary Norton Halphen Criminal Lawyers, who had been acting for the applicant since 21 February 2017, also sought to withdraw from the record in all those proceedings.
40 At that time I was unaware of the reasons why ‘ethical considerations’ had arisen, but it now appears the problem arose as a result of the applicant giving instructions to make the present application.[14]
[14] First affidavit [15].
41 I granted leave pursuant to s249(2) of the Criminal Procedure Act 2009 for Mr Casement and his instructing solicitors to withdraw from all matters before me involving the applicant, including the plea which he had entered in this matter.
42 In the present application the applicant filed the following documents:
(i) Grounds for change of plea application dated 22 August 2018[15] prepared by Abilene Singh of the Victorian Bar instructed at that time by Furstenberg Law (‘the grounds document’). I note that by the time of the oral hearing before me on 26 October 2018 the applicant was representing himself, Furstenberg Law having ceased to act at some time between 22 August 2018 and 26 October 2018.
[15] Exhibit A3.
(ii) Affidavit of Mark Whittingham sworn 22 August 2018[16] (‘the first affidavit’).
[16] Exhibit A1.
(iii) Second affidavit of Mark Whittingham sworn 23 October 2018[17] (‘the second affidavit’).
[17] Exhibit A2.
(iv) The exhibits to the first affidavit, being MW‑1 to MW‑8.
(v) The exhibits to the second affidavit, being MW‑9 to MW‑25.
43 In response, the Director of Public Prosecutions filed a document headed ‘Response to change of plea application’ dated 19 September 2018 (DPP’s response’).[18] I have had regard to all of this material.
[18] Exhibit R1.
44 In the grounds document the application is put on the basis that the plea of guilty to the four charges the subject of the application (‘the Westpac charges’) was ‘not really attributable to a genuine consciousness of guilt’. This is an extract from the judgment of Sholl J in R v Murphy.[19] The full quotation is as follows:
I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, e.g. a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial.
[19] [1965] VR 187, 191.
45 The grounds document points out that one of the particulars alleged in each charge concerns the applicant’s income tax return and the ATO notice of assessment for the 2015 financial year. The grounds document then proceeds to point out that in 2016 the ATO commenced proceedings against the applicant on the basis that that notice of assessment was final and conclusive proof that the tax identified in that assessment was true and correct and that it was the 2015 tax return on which that assessment was based.
46 The submission proceeds that on 23 March 2018, in County Court proceeding CI‑16‑01858 between the Deputy Commissioner of Taxation and the applicant, the court ordered that the applicant pay a sum of $1,294,051.96. The submission states that that tax judgment is comprised of moneys calculated by the ATO pursuant to the notice of assessment issued by the ATO for the 2015 financial year. There is then reference to s350‑10 of Schedule 1 of the Taxation Administration Act 1953 (Cth) (‘TAA’) and Item 2 of that schedule.
47 The submission continues with a reference to the decision of the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd to the effect that:
production by the Commissioner of the notices of assessment and of the GST declarations conclusively demonstrates that the amounts and particulars in the assessments and declarations are correct.[20]
[20] [2008] 237 CLR 473, 495–6 [57] (Gummow ACJ, Heydon, Crennan and Kiefel JJ).
48 The submission proceeds by asserting that the tax judgment, which was entered after arraignment in this proceeding, constitutes:
‘(a)A fresh finding against the applicant in relation to evidence which compromises the prosecution case for the “deception” element in the Westpac charges;
(b)Further and alternatively, is inconsistent with the entry on the court record of a plea of guilty to each and every element of a deception offence.’
49 The submission concludes:
In addition, [the applicant] was aware at all relevant times of the tax proceedings, which related to the 2015 FY notice of assessment and did not hold any genuine belief that the assessment and the underlying income [tax return] was false, deceptive or otherwise.
50 In the first affidavit the applicant sets out the course of the proceedings (CI‑16-01858) instituted in 2016 by the ATO against him.
51 The applicant deposes that:
I am and have always been aware that part of the allegations against me which form part of the Westpac Charges is that I overstated my income in a tax return for the 2015 FY and that I lodged that tax return.[21]
[21] First affidavit [4] (emphasis added).
52 The applicant asserts that at all relevant times his then barrister in the criminal proceedings, Mr Casement, and solicitor, Mr Norton, were aware of the tax proceeding.[22]
[22] First affidavit [7].
53 The applicant asserts that Mr Casement told him:
that I had to plead guilty to the charges in this criminal proceeding otherwise I would get a significant penalty for not pleading up early. Both Glenn Casement and Sam Norton told me I had to plead guilty. It is my understanding that they said this on the basis that I could not conclude conclusively that the tax return was bona fide.[23]
[23] First affidavit [10].
54 It appears that this was because the applicant was unable to produce ‘working papers’ for the 2015 financial year which would, he asserts, have demonstrated the truth of the income that he returned in his tax return which was ultimately assessed by the ATO.
55 Further in his affidavit the applicant asserts that he attempted to obtain a stay of the tax proceeding pending the outcome of his criminal proceeding and that this was unsuccessful. He refers to receiving a large number of documents from the ATO on 1 September 2017. He admits that he did not examine those documents in a timely fashion.
56 The affidavit proceeds:
A few days later, on 8 September 2017, I was arraigned and pleaded guilty to the Westpac Charges. I did this on the basis of the legal advice I had received. I did not fully appreciate or understand at the time I pleaded guilty the impact of the tax proceedings on this criminal proceeding.[24]
[24]First affidavit [13].
57 The affidavit continues:
On about 16 October 2017 I explained to Glenn Casement and Sam Norton that I wanted to change my plea of guilty. They said they could no longer represent me. They withdrew their representation at that point.[25]
[25]First affidavit [15].
58 The applicant further asserts that it was only in December 2017, when federal legislation was placed on the Corrections system that he had access to, that he appreciated the significance of the material that the ATO had given him in relation to the present proceeding.[26]
[26]First affidavit [18]–[19].
59 Importantly, at paragraph [20] of his affidavit, the applicant states:
On 11 December 2017, in the tax proceeding, her Honour Judge Morrish put me under oath and I was asked whether the tax return was genuine or if it was over-inflated. I said that I could not prove either way without the records. This has always been the case before and after I pleaded guilty.[27]
[27]First affidavit [20].
60 It follows from this sworn evidence that the applicant is unable to assert that the income that he returned in his 2015 tax return was not over-inflated. While the onus of proof does not change in a criminal proceeding, nonetheless, given that the applicant is seeking the exercise of a discretion to allow him to change his plea because the interests of justice demand that course be taken, he is not, it appears, in a position to assert that he did not deceive the Westpac Banking Corporation as to his 2015 annual income and thereby obtain a notice of assessment which did not truly reflect the income he had earned during that financial year.
61 Moreover, as Mr Cookson submitted on the hearing of this application:
The fact the ATO has accepted a self-assessment for the purposes of charging someone tax which is what they do and they are legally entitled to according to those very presumptions that we’ve looked at, that’s no evidence in the slightest as to the accuracy of those matters.[28]
[28] T51.6–11.
62 By the time of swearing his second affidavit the applicant was self-represented. In that second affidavit the applicant seeks to set out in more detail the background surrounding this application.
63 In the second affidavit the applicant sets out details in relation to his income tax return for 2014, his income tax return for 2015 and the notice of assessment for 2015. The applicant then provides details of what he calls ‘allegations of overstated income’. He makes the point that because the notices of assessment are ‘conclusive evidence of due making’ he is not required to provide workings; however, he then provides what he describes as ‘my snapshot of accounts’.
64 He then sets out what purports to be the gross income returned in respect of five financial years, and then states, ‘Whilst I cannot prove or disprove the income for reasons advanced’, he can prove gross earnings by reason of bank statements contained within the depositions. This appears to be an attempt to provide evidence to support the veracity of the amounts returned in the income tax returns the subject of the charges.
65 In my opinion it is difficult to know what a jury would make of this evidence and what arguments the Crown might put against it. It certainly does not indicate to my mind that there has been an obvious miscarriage of justice in this case.
66 Next the applicant deals with ‘missing business records’. He also sets out efforts he has made through the Freedom of Information Act1982 (Vic) to obtain communications between Victoria Police and the ATO.
67 The applicant then makes a number of assertions in relation to ‘Crown witness statements’ to put in question reliance by Westpac on the 2014 and 2015 individual tax returns, as opposed to the 2015 notice of assessment, in deciding to approve the credit cards and loans.
68 The applicant asserts that he was not aware of the existence of certain evidence contained in the depositions at the time he entered his plea in September 2018. He asserts that had he been aware of this material he would have raised these matters with Mr Casement prior to entering any plea. This seems to be based on a witness statement which says:
the ATO has accepted Logies self-assessment of his taxable income as declared in his 2015 Income Tax Returns.[29]
[29] Second affidavit [21].
69 Further on, the applicant asserts that the informant had withheld information that:
was vital to the defence and influenced the Plea, it would have shown that Australian Taxation Office had accepted the self-assessment of my taxable income as declared in the 2015 Income Tax Return and therefore would have proven that no crime had occurred.[30]
[30] Second affidavit [26].
70 This demonstrates the crux of the present application, being the applicant’s assertion that because the ATO accepted the accuracy of his self-assessed 2015 income tax return, there had been no deception on Westpac. As I explain later, in my view this is not the effect of the relevant provisions.
71 In his affidavit the applicant refers to a number of cases,[31] in particular the non-exhaustive list of circumstances where a court may set aside a conviction following a plea as set out by Spigelman CJ in R v Hura.[32]
[31] R v Middap (1989) 43 A Crim R 362; R v Ferrer-Esis (1991) 55 A Crim R 231; Weston v The Queen (2015) 48 VR 413; Meissner v The Queen (1995) 184 CLR 132, 157 (Dawson J).
[32] (2001) 121 A Crim R 472, 477–8 [32].
72 The applicant then quotes a passage from the judgment of Badgery-Parker J (with whom Woods and Mathews JJ agreed) from R v Davies[33] which was approved by Redlich J in Weston. Badgery-Parker J said:
if the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought be set aside and a new trial ordered if (but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Sholl J, ‘an issuable question of guilt’ – to put it more simply, if there is a real question to be tried. If the plea was not entered into with the full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.
[33] (Unreported) NSWCCA 16 December 1993 (emphasis is the applicant’s).
73 Following on from the citation of that passage of law, the applicant submits that:
The question in this matter is weather [sic] at the time I pleaded guilty in September 2017 to the charges 4-7, had a crime been committed, I say that no crime occurred and a not Guilty Plea should have been entered if the full facts of the matter had been put before me.
This application is based around the facts that no crime occurred, nothing more.[34]
[34] Second affidavit [35].
74 In developing his submissions the applicant asserts that he believed that the individual tax returns for the financial years 2014 and 2015 were a true reflection of his financial position at the relevant time in about September 2015. He further believed, he asserts, that the ATO notice of assessment for the financial year 2015 was a true and genuine document; however, the applicant states that he ‘could not prove the workings’.
75 These assertions, albeit on oath, do not sit well with the circumstances in which the pleas were negotiated as earlier summarised in this ruling. In my opinion, it beggars belief that, if this were in fact the applicant’s state of mind at the time, he would have pleaded guilty to charges in circumstances where he held a genuine belief he had not committed them.
76 Moreover, it is clear from the agreed statement of facts, which, as Mr Casement said, had been read to the applicant and agreed to by him as true facts for the purposes of the plea, that his income as returned in 2014 and 2015 — on which the 2015 notice of assessment was based — was not a truthful reflection of his actual income during the relevant years and that the applicant’s income was deliberately overstated in order to obtain the financial advantages as described in each charge.
77 In my opinion the applicant’s submissions smack of a reconstruction by him of events to suit his purposes following the entry of summary judgment in the proceedings against him by the Commissioner of Taxation using the 2015 notice of assessment as conclusive proof in those proceedings of the debt owed to the ATO by the applicant.
78 The applicant’s submissions continue that if the plea should not be set aside there would be a miscarriage of justice, because his state of mind at the time he entered those pleas was one whereby he believed he could not prove guilt or innocence, presumably because he did not have the ‘working papers’ to support the income he declared in his returns for the financial years 2014 and 2015. He asserts that he therefore ‘eared [sic] on the side of caution after advice from Council [sic] Mr Casement’. He continues:
I believe that if Mr Casement had the complete facts of the matter that advice would not have been given however its [sic] irrelevant. I don’t hold Mr Casement responsible in any way for this matter, Mr Casement was merely working on the sheer volume of material for a larger trial and he was relying on my knowledge of the matters/background, both Mr Casement and myself are not tax experts and we did not have sufficient knowledge of Tax Laws at the time, this was supported by the deception of Detective Yeo to withhold the knowledge gained from the Australian Taxation Office and evidence over the matter.[35]
[35] Second affidavit [47].
79 The reference to ‘Detective Yeo’, who was the informant in these matters, is a reference to an allegation that Detective Yeo withheld relevant material from the applicant which would have placed matters in a different light so far as he was concerned. So far as I can establish there is nothing in this assertion. Detective Yeo was not called on the hearing of this application by the applicant so these allegations could be put to him. Accordingly I can make no finding one way or the other in relation to this allegation.
80 Finally in his second affidavit, the applicant asserts that the tax judgment which was entered after his arraignment in these proceedings constitutes:
‘(a) A fresh finding in relation to evidence which compromises the prosecution case for the ‘deception’ element in the Westpac charges, and
(b) Further and alternatively, is inconsistent with the entry on the Court record of a plea of guilty to each and every element of a deception offence.”
81 The applicant proceeds then to deal with a number of matters under the heading ‘Abuse of Process’. The matters raised in this section of the second affidavit relate to allegations of misconduct during the investigation by Detective Senior Constable Stephen Yeo.
82 For the reasons previously stated, I am unable to form any concluded view regarding the truthfulness of these allegations. In any event, I doubt they have any bearing on the outcome of the application presently before me.
83 Moreover, I note that these allegations have been referred by the applicant to the Professional Standards Command of Victoria Police, which is currently investigating the allegations. Accordingly, it would be inappropriate for me to make any further comment until after those investigations have been finalised.[36]
[36] See exhibit MW-25 to the second affidavit.
84 This matter came on for oral hearing before me on 26 October 2018. Mr Cookson appeared for the Director of Public Prosecutions and the applicant was self-represented.
85 The applicant gave evidence on oath before me at that hearing. The applicant swore to the truthfulness of the two affidavits filed in the proceedings.[37] It is clear from the answers he gave in cross-examination that the applicant’s basis for this application is his belief that ‘no crime has been committed’.
[37] Exhibits A1 and A2.
86 He accepted that he had received legal advice prior to entering his pleas of guilty and that he accepted that advice. In answer to the question:
[A]t ... the point in time before you entered the plea, you’ve received advice and on your analysis of the evidence at that point in time you’ve thought that the Crown case might be established; correct?
The applicant answered:
I erred on the side of caution. It was a commercial decision that I took.[38]
[38] DPP v Whittingham, 26 October 2018, transcript (‘T’) 5.15–20.
87 The cross-examination continued:
Well, let’s breakdown what the words ‘commercial decision’ mean. By that you mean it’s an analysis of the pros and the cons, and you’ve come to that conclusion; correct?
To which the applicant answered: ‘That’s correct, yes’.[39]
[39] T5.21–24.
88 The applicant confirmed by his answers that one consideration in his mind at that time was that if he ran a trial and was found guilty he could receive a ‘much higher penalty’. The applicant also accepted that he had a ‘very good relationship’ with Mr Casement and that in his opinion Mr Casement ‘was a competent criminal barrister’.
89 The applicant accepted that there was no rush for him to plead guilty to these charges. They formed part of what was to become a long and complex number of trials, and he admitted that he could have waited until he was fully across all the materials before making a decision to plead, but chose to do so in any event.[40] He admitted that he was more concerned with the ‘larger matter’ that was pending before me.[41]
[40] T6–15.
[41] This is a reference to what became the loan trial, the rent roll trial, and the Kahan and Hall trial.
90 Once again the applicant accepted that he had made a ‘commercial decision’ to plead guilty to these four charges based on his analysis of the ‘pros and cons’ as they appeared to him at the time:
All I’m interested in is the thing that changed that made you say, ‘Well that’s such a shift in the landscape that I no longer wish to be bound by my plea’. And that thing was your understanding of s.350-10 and your uncovering of certain other statements that you say would enliven its use in this criminal proceeding; correct?
To which the applicant answered: ‘Yes’.[42]
[42] T9.14–16.
91 The applicant made clear the basis for this application was that, given the particulars as asserted in the charges, in law no offence could be committed by him. Mr Cookson in cross-examination asked this question:
The reason you say there was no offence ... is because the operation of s.350-10 means that everything you said was correct?
To which the applicant answered: ‘That’s correct’.[43]
[43] T15.3–12.
92 The applicant confirmed that the proceedings before Judge Morrish were resolved by the making of consent orders as a result of an agreement between him and the ATO, and that her Honour was not required to make any findings in the proceedings before her.[44]
[44] T15.23 to 16.10.
93 Mr Cookson sought to establish what the applicant’s logical reasoning process had been:
So your logic, then, if I can try and piece it together is this: this witness [an ATO officer] says that they accept your self-assessment of the 2015 tax return; correct?
To which the applicant answered: ‘Yes’. The cross-examination continued:
When you take that evidence and filter it through s.350-10, evidence of an accepted income tax return equals the tax return is declared correct. It means that the court must conclude that there was no dishonesty on your part?
To which the applicant answered: ‘That’s correct’.[45]
[45] T18.29 to 19.5.
94 The applicant confirmed in cross-examination that ‘all of [his] tax matters are based on [his] own assessment of [his] earnings and the documentation that [he himself] has filed’.
95 In answer to questions from me the applicant confirmed that there were no new documents that had come to his attention, relevant to the accuracy of his 2014 and 2015 income tax returns, since he entered his pleas of guilty.[46]
[46] T20.21 to 21.10. See also T22.13–15.
96 Mr Cookson confirmed with the applicant that:
all the documents you’re referring to are documents that you’ve had at the time [of entering the pleas] and could – but you made a commercial decision nonetheless to enter a plea of guilty to those charges and those particulars?
To which the applicant answered: ‘That’s correct’.[47]
[47] T25.26–30.
97 In questioning from me the applicant accepted confirmed his position that Mr Casement advised him to the effect that ‘if he cannot prove he is innocent he would have to plead guilty’. It is noteworthy that the applicant did not call Mr Casement or Mr Norton in these proceedings to support that assertion. Moreover, it seems an extraordinary proposition, given the experience, competence, and reputation of Mr Casement, with whom the applicant had a good relationship.
98 I do not accept the applicant gave truthful evidence in this regard. This finding affects the weight I give to the rest of his evidence. He struck me as a witness who was prepared to say anything that he thought would further his interest.
99 In questions from me the applicant conceded that the statements of the ATO officers indicating that his 2015 tax return had been ‘accepted’ by the ATO had been given to him about two weeks prior to him entering his pleas.[48]
[48] T29.26–30.3.
100 In my opinion, Mr Cookson accurately summarised the position when he said Mr Whittingham had received legal advice, it was detailed legal advice, he had a good relationship with his legal advisers, he had access to all of the documents on which the analysis of the strength of the prosecution case was made, and, having understood all that, he made the decision to enter the pleas of guilty. Mr Cookson made the point that there is nothing wrong with deciding for ‘commercial reasons’, or for reasons of sentence mitigation or questions of concurrency, to enter a plea of guilty.[49]
[49] T39.13–24.
101 Mr Cookson posed the question for my decision in these terms: has the recent discovery by the applicant of the existence of s350‑10 of the TAA been such as to render it unconscionable to hold him to his plea?[50] More accurately, has there been a miscarriage of justice in this case such that the applicant ought not to be held to his plea?
[50] T39.24–29.
102 I have been greatly assisted in this matter by both the written and oral submissions of Mr Cookson who appeared on behalf of the respondent.
103 As he points out, the applicant bears the onus of establishing circumstances which are sufficient to justify enlivening the discretion in his favour. The intervention of the court has been noted as only being granted in ‘rare and exceptional circumstances’.[51] Moreover, the courts have held that applications for leave to change a plea ought to be approached with ‘caution bordering on circumspection.[52]
[51] R v Murphy [1965] VR 187; R v Sivov [2008] VSCA 100 [44].
[52] R v Boag (1994) 73 A Crim R 35; Gurappaji v The Queen [2018] VSCA 187 [9] citing JA in R vBDC [2018] QCA 132.
104 The leading case in Victoria is R v Middap[53] where the Court (Crockett, O’Bryan and Gray JJ) said:
The only test which is to be applied is whether a miscarriage of justice, in the view of the Judge, would occur if the leave sought were denied the applicant. Each case must be examined on its own particular facts and merits, and there is no question but that the Judge has a discretion, indeed perhaps a wide discretion, to exercise in relation to the matter, which must be exercised judicially and having regard to the test to which I have referred.
[53] (1989) 43 A Crim R 362, 364.
105 In Weston (A Pseudonym)v The Queen[54] Redlich JA, following an extensive analysis of case law in this area, distilled a number of propositions which inform the exercise of the discretion to allow an applicant to change his or her plea.[55] I have had regard to those propositions.
[54] (2015) 48 VR 413.
[55] Ibid 443 – 446 [109].
106 I am of the opinion that the applicant has failed to show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of his pleas so that it would be a miscarriage of justice to hold him to his pleas.
107 In my opinion the applicant is a highly intelligent person. I have had significant opportunities to observe and hear him over a period of some 18 months, while this complex litigation has been unfolding. In the past he has been a very successful businessman. At the time of his arraignment and at the plea hearing, over 13 months later, he was advised by experienced and competent criminal lawyers. He makes no complaint about that advice or the conduct of his legal representatives. Indeed, he is highly complementary of Mr Casement.
108 What this application comes down to is the stark reality that the applicant made a forensic choice, or what he refers to as a ‘commercial decision’, to plead guilty to these charges so that he could concentrate on defending a very large number of other charges, which at that time were expected to proceed as three lengthy trials.
109 I am of the view that the applicant was sufficiently across all relevant documents and materials to have made an informed decision regarding whether or not to plead guilty to the four charges the subject of this application.
110 In my opinion, to borrow the expression used by Whelan and Kaye JJA in Weston,[56] the applicant’s pleas were attributable to a consciousness of guilt on his behalf.
[56] Ibid 447 [119].
111 In my opinion, the only thing which has changed since the pleas were entered is the entry of judgment in the proceeding against the applicant by the Commissioner of Taxation and the applicant becoming aware of the existence of s350-10 of Schedule 1 of the TAA, which provides for conclusiveness in the production of a notice of assessment under taxation law.
112 However, in my opinion, the applicant misunderstands the effect in law of that provision. The provision is expressly qualified by s350-5 of Schedule 1 of the TAA which states that this sub-division applies in relation to all ‘taxation laws’. A definitional provision is contained in s995-1 of the TAA. It is clear that the term ‘taxation laws’ has no relevant meaning with regards to criminal proceedings conducted by the Director of Public Prosecutions (Vic) in this State. As Mr Cookson notes in the DPP’s response:
Criminal proceeding is not in any way affected by this presumption of evidence, which is explicitly restricted to taxation law.[57]
[57] DPP’s response [14].
113 Nothing in the High Court’s decision in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd[58] suggests otherwise. I accept Mr Cookson’s submission that Broadbeach is authority for the proposition that s459G applications under the Corporations Act 2001 (Cth) by taxpayers concerning tax debts are governed by the evidentiary provisions of the TAA. As he submits:
Broadbeach … is not authority for the application of TAA evidentiary presumptions to criminal proceedings.[59]
[58] [2008] 237 CLR 473.
[59] DPP’s response [16].
114 Moreover, Mr Cookson drew my attention to the provisions of s91 of the Evidence Act2008 (Vic) which renders evidence of judgments and convictions as inadmissible to prove the existence of a fact that was in issue in that proceeding. I also accept Mr Cookson’s submission that there is no inconsistency between the tax judgment in the civil proceeding and the recording of pleas of guilty in this proceeding.[60]
[60] DPP’s response [19].
115 As far as the question whether or not the applicant’s pleas were attributable to a genuine consciousness of guilt on his part, Mr Cookson referred me to Kumar v The Queen(No 2),[61] where the Victorian Court of Appeal held:
“(d) If, however, an admission of guilt is freely made, the fact that it might have been motivated by hope or expectation of forensic, sentencing or other technical advantage will not deprive it of the quality of a true admission of guilt unless it be shown that the accused did not intend thereby to accept guilt for an offence of which he believed himself to be guilty.[62]
[61] [2014] VSCA 102.
[62] Ibid [16] (Nettle and Redlich JJA and Almond AJA).
116 Whatever one makes of any differences between Redlich JA’s interpretation in his judgment in Weston of this aspect of Kumar and that of Whelan and Kaye JJA in Weston, the burden would be on the applicant to establish ‘that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage’.[63]
[63] Weston [109] (Redlich JA), [128] (Whelan and Kaye JJA). See also Jamieson v The Queen [2017] VSCA 140 [92], [94], [101] (Ashley, Osborn and Santamaria JJA).
117 I am far from satisfied that the applicant did not believe himself to be guilty at the time he entered his pleas of guilty to the four charges in issue. In this regard I observe that it was open to the applicant to call Mr Casement and Mr Norton to support his assertion that he believed himself to be not guilty of having deceived the Westpac Bank but, nonetheless, pleaded guilty to derive some forensic advantage or for ‘commercial reasons’.
118 For the sake of completeness, I note the respondent’s reliance on the cases of Gurappaji v The Queen[64] and R vBDC,[65] and its submission that a ‘mere subjective belief in innocence is insufficient to establish that an accused lacks genuine consciousness of guilt’.[66]
[64] [2018] VSCA 187.
[65] [2018] QCA 132 [9].
[66] DPP’s response [26]–[27].
119 I accept the respondent’s ultimate submission that neither separately nor in combination do any of the issues raised by the applicant in this application establish that a miscarriage of justice would occur in the event the applicant is held to his plea.[67]
[67] DPP’s response [28].
120 Accordingly, Mr Whittingham’s application to change the pleas of guilty he entered on 8 September 2017 in respect of Charges 4, 5, 6 and 7 on Indictment No G10711001.1 is refused.
And I so rule.
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