Wilhelm v The State of Western Australia
[2013] WASCA 188
•15 AUGUST 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WILHELM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 188
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 8 MAY 2013
DELIVERED : 15 AUGUST 2013
FILE NO/S: CACR 14 of 2013
BETWEEN: SIMON AARON WILHELM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 727 of 2012, IND 810 of 2012
Catchwords:
Criminal law - Application for leave to appeal against conviction - Guilty pleas entered - Whether guilty plea not unequivocal
Legislation:
Sentencing Act 1995 (WA), s 32
Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms N B Stewart
Respondent: No appearance
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Moncur v Pilgrim [2012] WASCA 131
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against conviction.
The appellant was convicted in the District Court on 12 October 2012, on his own pleas, of the following offences:
(a)Indictment 727 of 2012, that:
(1)Between 13 February 2005 and 5 December 2005 at Leederville Simon Aaron Wilhelm, with intent to defraud, by deceit or fraudulent means, gained a benefit, namely $14,000 in money, for Simon Aaron Wilhelm.
(2)Between 20 July 2004 and 23 July 2005 at Leederville Simon Aaron Wilhelm, with intent to defraud, by deceit or fraudulent means, gained a benefit, namely $34,200 in money, for Simon Aaron Wilhelm.
(3)Between 29 November 2004 and 31 December 2005 at Leederville Simon Aaron Wilhelm, with intent to defraud, by deceit or fraudulent means gained a benefit, namely $20,000 in money, for Simon Aaron Wilhelm.
(b)Indictment 810 of 2012, that:
(1)On 27 July 2006 at Carlisle Simon Aaron Wilhelm had in his possession child pornography, in the form of photographs.
(2)On the same date and at the same place Simon Aaron Wilhelm had in his possession child pornography, in the form of computer data.
(3)On the same date and at the same place Simon Aaron Wilhelm had in his possession child pornography, in the form of computer data.
(4)On the same date and at the same place Simon Aaron Wilhelm had in his possession child pornography, in the form of computer data.
(5)On the same date and at the same place Simon Aaron Wilhelm had in his possession child pornography, in the form of computer data.
(6)On the same date and at the same place Simon Aaron Wilhelm had in his possession child pornography, in the form of computer data.
(7)On the same date and at the same place Simon Aaron Wilhelm had in his possession child pornography, in the form of computer data.
(c)A notice pursuant to s 32 of the Sentencing Act 1995 (WA), as follows:
PE 28930/12
Breach of bail
PE 28934/12
Exceed Speed Limit
PE 28935/12
Fail to Stop
PE 28936/12
Reckless Driving
PE 28937/12
False Numberplates
PE 28938/12
No Motor Drivers Licence
PE 28939/12
Stealing
PE 45311/06 - PE 45330/06
Gains Benefit by Fraud
PE 42454/06
Steal Motor Vehicle
PE 42458/06
Steal Motor Vehicle
PE 42459/06
Gains Benefit by Fraud
PE 42461/06
No Motor Drivers Licence
The appellant was sentenced to a total effective term of 5 years 2 months' imprisonment with parole eligibility. He was also fined a total of $2,900, and he was disqualified from holding or obtaining a motor driver's licence for 6 years and 6 months. He has appealed against sentence. Leave to appeal has been granted in respect of that appeal, which will be heard in due course.
The appellant seeks leave to appeal against all of the convictions, apart from the conviction for breach of bail. The proposed ground of appeal reads:
A miscarriage of justice was occasioned by the entry of judgments of conviction because there was a plea in mitigation inconsistent with guilt and the Appellant:
(a)did not understand the nature of the charges;
(b)the elements of the offences were not admitted; and
(c)on the admitted facts the Appellant was not guilty of the offences.
In essence, it is submitted that the pleas of guilty on the fraud charges in indictment 727 of 2012 and the two stealing a motor vehicle charges in the s 32 notice (42454 and 42458 of 2006) were not unequivocal. It is also said that there was an obvious inconsistency between the explanation for the offences given during the plea in mitigation and the appellant's guilt. In respect of all of the other convictions, the appellant seeks to rely on the contents of an affidavit sworn by him on 20 March 2013 in which he says:
(i)he had good defences to the charges;
(ii)he did not expect to be facing the charges in the s 32 notice and pleaded guilty to them not because he wanted to, but because his counsel told him to plead guilty; and
(iii)he spoke to his counsel during the sentencing proceedings about his pleas and told his counsel he wished to go to trial, but his counsel told him he could not do this because it would make him (counsel) look foolish.
For the reasons that follow, I have reached the conclusion that the proposed ground of appeal has no reasonable prospect of succeeding. Accordingly, the appeal must be taken to have been dismissed: s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).
Proceedings before the District Court
On 12 October 2012, the appellant was arraigned on the indictments and the offences contained in the s 32 notice. In respect of each of the indictable offences, the transcript records his unequivocal plea of guilty (ts 9 ‑ 10).
The s 32 notice offences were put to him compendiously in this way:
THE CLERK OF ARRAIGNS: Further, under a section 32 notice of the Sentencing Act you also come to be sentenced for two counts of stealing a motor vehicle, 21 counts of being a person with intent to defraud gaining a benefit, two counts of driving, employing or permitting another person to drive a motor vehicle without a motor driver's licence where the driver was no longer authorised to drive due to penalty enforcement laws, one count of breach of bail undertaking, one count of exceeding the speed limit in a speed zone, one count of refusing to state or stating a false name or address [or] failing to stop when called upon to do so by police, one count of reckless driving, one count of driving - of permitting to be driven a vehicle with forged or altered numberplates and one count of stealing anything capable of being stolen.
In respect of each and every one of those 31 counts, how say you? Are you guilty or not guilty? (ts 10 ‑ 11).
The appellant asked permission from his Honour to speak to his lawyer. After doing so, he said, 'Your Honour, I plead guilty' (ts 11).
No issue has been taken in this appeal as to the way the appellant was arraigned on the s 32 notice offences.
Immediately after the pleas were taken, his Honour asked defence counsel if they were consistent with the appellant's instructions. Counsel replied that they were. His Honour then entered judgments of conviction to all of the counts in the indictments and the s 32 notice (ts 11).
Facts of indictment 727 of 2012
In approximately August 2004, Mr Chong agreed to sell to the appellant his Nissan GTi‑R motor vehicle for $6,500. The appellant paid a deposit of $200 and took possession of the vehicle. The vehicle remained the property of Mr Chong.
In approximately October 2004, the appellant agreed to sell the Nissan GTi‑R to Mr Duke (the complainant in count 3) for $20,000, on the condition that the vehicle was fully repaired, re‑sprayed and re‑licensed in Mr Duke's name. It was agreed that upon full payment by Mr Duke to the appellant, the car would be transferred to Mr Duke. The appellant misled Mr Duke by telling him that he was the owner of the Nissan GTi‑R. On or about 3 December 2004, Mr Duke paid the appellant the $20,000. Despite Mr Duke's request, the Nissan GTi‑R was not transferred to him (count 3).
In approximately January 2005, the appellant and Mr Jameson (the complainant in count 1) discussed the Nissan GTi‑R. The appellant did not tell Mr Jameson about his purported sale of the vehicle to Mr Duke. Mr Jameson agreed to pay the remaining $6,300 to buy the Nissan GTi‑R from Mr Chong, as well as finance its repair and restoration. The appellant and Mr Jameson agreed that the appellant was to organise and coordinate the repairs and restoration. It was agreed that if the car was later sold, the appellant and Mr Jameson would split the proceeds, or alternatively, Mr Jameson would pay the appellant a sum of money if he (Jameson) decided to keep the car.
On 14 February 2005, Mr Jameson gave Mr Chong a cheque for $6,300. Mr Chong signed the transfer papers to Mr Jameson as purchaser. Thus Mr Jameson became the owner of the vehicle.
Between February and June 2005, Mr Jameson, still in ignorance of the fact that the appellant had purportedly sold the Nissan GTi‑R to Mr Duke, made three payments to the appellant totalling $14,000: $9,500 was for repair and restoration works, which were not performed; $4,000 was given to the appellant as a loan secured by the appellant's interest in the car; $500 was for a deposit on another car. The appellant repaid $1,200 of the loan.
It was not until November 2005 that Mr Jameson discovered that the appellant had purported to sell the vehicle to Mr Duke. In December 2005, the appellant moved the vehicle to another location without Mr Jameson's knowledge. The appellant then told Mr Jameson that for $5,000 he could come and collect the unassembled parts of the Nissan GTi‑R. Mr Jameson never received delivery of the vehicle or any further loan repayments (count 1). On 27 July 2006, the police located the vehicle at the appellant's address in Carlisle.
With respect to count 2, the complainant is Mr Sudic. In 2004, Mr Sudic wanted to purchase a Nissan Skyline vehicle and he enlisted the appellant's help to do so. On 21 July and 6 August 2004, Mr Sudic made payments to the appellant totalling $14,000 in anticipation of the purchase of the vehicle. In due course, a black Nissan Skyline became available for purchase. The appellant and Mr Sudic met the owner and it was agreed that Mr Sudic would purchase the vehicle for $12,950. This purchase did not eventuate because the appellant had, without Mr Sudic's consent, used some of the $14,000 for his own purposes.
The appellant told Mr Sudic about the Nissan GTi‑R (the subject of counts 1 and 3) and said that the vehicle was available to be purchased for $6,400. Mr Sudic agreed to purchase this vehicle with what remained of the $14,000 he had given to the appellant. The appellant did not effect this purchase.
Later, the appellant drew Mr Sudic's attention to a white Nissan Skyline that was available for sale. Mr Sudic gave the appellant $4,000 and told him to use this and the balance of the $14,000 to purchase the vehicle. Although Mr Sudic gained possession of the vehicle, the appellant did not pay the money given to him by Mr Sudic to the vendor. In mid 2005, the appellant told Mr Sudic that the money that was supposed to have been paid to the vendor had been used by his girlfriend without his knowledge. Mr Sudic still wanted the white Nissan Skyline and gave the appellant $16,200 to pay the vendor. Again, the appellant failed to pay the vendor and retained the money for his own use.
The total amount of money paid to the appellant by Mr Sudic to purchase the Nissan Skylines was $34,200. The vendors did not receive any of the money. Rather, the money was retained by the appellant for his own use. In the end, Mr Sudic paid directly to the vendor an additional $19,700 for the purchase of the white Nissan Skyline.
Facts of indictment 810 of 2012
On 27 and 28 July 2006, the police executed a search warrant at the appellant's home address. During the search, the appellant agreed that he was the only occupant of the premises and the only person who had access to the premises.
During the search, the police found 24 printed A4 images showing naked juvenile females aged between approximately 6 to 14 years, in various sexual poses. The police also seized 111 CDs. It was later discovered that six of these discs contained images of the same type as the A4 images.
Altogether, the police discovered 762 images and 17 videos that constituted child pornography. Of these, 195 images and 13 videos depicted non‑penetrative sexual activity between children or solo masturbation by a child.
The s 32 notice offences
PE 28934 ‑ 28939 of 2012
On 21 March 2007, a police officer trained a radar device on a motor vehicle being driven by the appellant. It recorded the appellant driving 21 km per hour in excess of the speed limit. The appellant did not stop when called upon. He then drove recklessly to avoid apprehension. He drove through a red light, accelerated heavily in excess of the speed limit in a built up area and nearly struck a road worker when the vehicle hit a kerb. The appellant then abandoned the vehicle and fled from the scene. The vehicle was fitted with false numberplates and the appellant's driver's licence was under fine suspension. The false numberplates were stolen from a vehicle that the appellant was meant to be repairing.
PE 45311 ‑ 45330 of 2006 and PE 42459 of 2006
All of these 21 charges concern the appellant's fraudulent use of cheques.
The appellant was the sole operator of a business cheque account styled The Wilhelm Family Trust trading as Wilhelm Automotion. The business name, Wilhelm Automotion, was deregistered on 5 July 2005.
Between 19 December 2005 and 6 June 2006, the appellant wrote cheques for various amounts and passed the cheques as payment for goods and services. At the time each cheque was presented, the appellant knew that there were insufficient funds in the account for the cheque to be honoured. Each cheque was, in fact, dishonoured. The total value of the fraudulent cheques was $10,781.65.
PE 42454 of 2006
The complainant in respect of this offence was the appellant's former partner, Ms Sutton. On 9 December 2004, without Ms Sutton's permission or knowledge, the appellant drove her Nissan Skyline vehicle to a mechanical workshop in Morley and arranged for the engine to be removed. At a later date, the complainant found out where the vehicle was being kept. She attended the premises and unsuccessfully demanded its return. The following day, the appellant took the car to his factory unit, where it remained until the police discovered it during the search on 27 July 2006.
PE 42458 of 2006
This offence is related to count 1 on indictment 727 of 2012. After Mr Jameson purchased the Nissan GTi‑R from Mr Chong, the appellant moved the vehicle to a location unknown to Mr Jameson and refused to inform Mr Jameson of the vehicle's whereabouts.
PE 42461 of 2006
On 27 July 2006, police officers saw the appellant driving a motor vehicle on a public road. The appellant's driver's licence was, at the time, suspended for failure to pay fines. The appellant was stopped by the police. He admitted to the police that he knew he was under suspension.
Defence counsel's plea in mitigation
After the prosecutor read the statement of facts, defence counsel admitted the facts as recited by the prosecutor (ts 19).
He said that, in respect of the fraud offences in indictment 727 of 2012, at the time of the offences the appellant was operating an automotive repair business in the name of his former partner, Ms Sutton. Defence counsel asserted that the moneys given to the appellant by the complainants 'were advanced to him for the purchase of cars' and that the appellant's intention was 'to do those purchases, make the appropriate repairs and make money with the cars to repay the loans' (ts 19). His Honour queried whether that assertion was consistent with the pleas of guilty. Defence counsel replied that he had been instructed 'on a number of occasions' by the appellant to plead guilty to the charges. His Honour questioned whether the appellant could plead guilty to a charge that included having an intention to defraud, if the appellant had intended to repay the monies advanced to him.
Defence counsel recognised his Honour's point and said that he would 'deal with the context within which these offences occurred and then address [his Honour's] questions' (ts 20).
Defence counsel went on to explain that the appellant did not, during the relevant period, operate a bank account in his own name. Rather, he used a bank account in the name of his former partner, Ms Sutton. The appellant did this, counsel said, because he wanted to appear to have no money in order to avoid paying child support to the mother of his two children. After his relationship with Ms Sutton broke down, the appellant suffered financial difficulty. Defence counsel submitted that it was in this context that the fraud offences in the indictment 727 of 2012 were committed.
The sentencing judge queried the existence of the connection between the break‑up of the appellant's relationship with Ms Sutton and the commission of the offences (ts 24). Defence counsel then sought and took instructions from the appellant (ts 25). Defence counsel's response did not, in his Honour's view, deal with the matter put by his Honour to counsel.
His Honour elaborated:
O'NEAL DCJ: Right. Mr Barber, I have to say that of course doesn't really answer the matter that I was putting to you. But he has pleaded guilty to gaining a benefit in circumstances where he had an intent to defraud.
BARBER, DR: Yes.
O'NEAL DCJ: He's not criminally liable for an offence like that just because he didn't make good a debt that he owed, and that's the proposition that you're putting. Either he's guilty of the offence that he's pleaded guilty to or he's not.
Can I also say to you, I'm a bit troubled by this suggested explanation, in circumstances where I have to say with respect, contrary to what you say that was a low frequency of dishonest offending, actually in fact was a couple of dozen bad cheques that he wrote over a period of months and there are of course, the three significant fraud offences.
So what I'm saying to you is, that to the extent that I'm able to make sense of the explanation that's offered, I have difficulty accepting what's said on instructions from Mr Wilhelm. I'm telling you that in case there's something you want to do about it (ts 25). (emphasis added)
Defence counsel's response was:
BARBER, DR: Yes, your Honour. With respect to my quote as to the low frequency, that I took from the writer of the reports. So that's where that came from. It is acknowledged that there are these three significant fraud matters and that there are a series of dishonest cheque offences. That is accepted. As to the other issues your Honour raises, I can't take the matter any further (ts 25 ‑ 26).
His Honour responded this way:
O'NEAL DCJ: All right. Just so long as you understand that as things stand, I don't have a very positive view of the probity of your client or the instructions that are passed through you, so that you understand that you do have this opportunity if you do want to do something about it (ts 26).
His Honour then heard sentencing submissions from the prosecutor. During those submissions, it became evident that his Honour had not heard the facts in respect of matter number 42458 of 2006 on the s 32 notice. After hearing those facts, his Honour asked defence counsel if they were accepted. Defence counsel answered in the affirmative (ts 31). Defence counsel went on to refer to the offence of stealing Ms Sutton's motor vehicle: 42454 of 2006. He suggested that the appellant had taken her vehicle because he had an interest in it.
The learned sentencing judge then asked defence counsel if that was so, why had the appellant pleaded guilty to stealing it (ts 32). At this point, his Honour, on his own motion, adjourned the court to allow defence counsel to take more instructions from the appellant.
After the adjournment, the following exchange took place between defence counsel and his Honour:
BARBER, DR: Your Honour, thank you for the opportunity of that short adjournment. Your Honour, there is, and it is accepted, a degree of inconsistency with some of the submissions I've been instructed to make today and the requisite intent for the fraud charges. However, I'm instructed that Mr Wilhelm does not seek a trial of the issues, that he accepts the plea of guilt, and that there are matters which we have discussed earlier that I can't take any further.
O'NEAL DCJ: All right. I said 'trial of issues', actually, in fact, a trial, because effectively he'd be recanting the plea of guilty. But in any event, he's content to allow those pleas to stand?
BARBER, DR: Yes, your Honour (ts 32).
The pre‑sentence report
His Honour was provided with a pre‑sentence report dated 8 August 2012. The appellant told the author of the pre‑sentence report that he had used the money paid to him by Mr Duke (the complainant in count 3 on indictment 727 of 2012) for 'rent, wages and purchase and repair of other vehicles'. He told the pre‑sentence report author that he expected to be able to repay the monies once more funds came into the business. The appellant stressed to the author of the report that 'he used monies paid to him by the victims to finance other projects'. In relation to the child pornography charges the subject of indictment 810 of 2012, the appellant told the author of the pre‑sentence report that he acknowledged possessing the images and explained them by saying that 'he was sexually stimulated by … small‑breasted women'.
The psychological report
The psychological report prepared by Ms Jane Sampson, dated 5 August 2012, referred to the appellant's offending behaviour. Ms Sampson noted that the appellant 'accepted the events as outlined in the statements of material facts in both the three fraud convictions [727 of 2012] and the seven child pornography convictions [810 of 2012]'. As to the child pornography charges, the appellant told Ms Sampson that he acquired the images between 2000 and 2004.
The appellant's affidavit sworn 20 March 2013
The appellant said that he was arrested in June 2012 and first met with defence counsel about two weeks after he was arrested. The appellant said that his counsel spoke to him about the indictable charges. He said that his understanding was that 'if someone borrowed money and did not pay it back then that was fraud'. He said that he 'always had full intentions of delivering a car to my customers that they were satisfied with or paying back the people who provided me with money'.
The appellant said that defence counsel did not explain the legal elements of fraud or the charges of possession of child pornography. In relation to the child pornography charges, he said that the computer that he used 'was shared by a number of people' and that he 'never owned a printer and had never printed any images'.
The appellant admitted that the charges in the s 32 notice were raised with him. He said that defence counsel led him to believe that the charges 'would be either withdrawn or absorbed by the charges being dealt with on indictment'. He said that defence counsel and he went 'through the facts of the charges', and he indicated to counsel that he had not done what was alleged. He expanded on this by asserting that:
(a)in relation to the two charges of stealing a motor vehicle, he considered that the car in question was his;
(b)with respect to the allegedly fraudulent cheques, he was confident that there would be money in his account to pay for the items;
(c)he was not aware that his driver's licence had been disqualified; and
(d)he did not steal any registration plates.
The appellant accepted that twice in the proceedings before his Honour he spoke to defence counsel. He said that he asked defence counsel why the s 32 matters were being raised. He said that he told counsel that he wanted to go to trial, but defence counsel said that he 'could not do this as it would make him [defence counsel] look foolish'.
The law relating to an appeal against conviction after a plea of guilty has been entered
An accused person may enter a plea of guilty for reasons other than a belief in his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 (157) (Dawson J).
As I explained in Moncur v Pilgrim [2012] WASCA 131, it is not easy to persuade a court to set aside a plea of guilty. Although cases where a court will set aside a plea of guilty cannot be exhaustively identified, there are three well‑recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:
1.Where the appellant did not understand the nature of the charge or did not intend to admit guilt.
2.If upon the admitted facts, the appellant could not, in law, have been guilty of the offence.
3.Where the plea of guilty was obtained by improper inducement, fraud, intimidation or the like [37].
If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt, it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 (511).
Analysis of the ground of appeal
It is clear that the learned sentencing judge was very much alive to the fact that what was being put by defence counsel in respect of the fraud charges, the subject of indictment 727 of 2012, was inconsistent with the pleas of guilty. His Honour conveyed this to defence counsel and said, in effect, that he was not prepared to sentence on a basis inconsistent with the pleas of guilty. His Honour gave defence counsel two opportunities to discuss the position with the appellant. After the second adjournment, defence counsel acknowledged the inconsistency between the submissions and the pleas of guilty, but confirmed that the appellant did not want to go to trial and wanted his pleas to stand. Put another way, his Honour made it clear that he did not accept what was being put to him from the bar table and gave the appellant every opportunity to withdraw his pleas of guilty and have the allegations tried. The appellant declined to do so. In these circumstances, contrary to the submissions of the appellant, it cannot be said that his Honour erred by accepting the appellant's pleas of guilty.
It must also be observed that insofar as any statements were made by defence counsel from the bar table that were inconsistent with the appellant's pleas, they were only inconsistent with the pleas in respect of indictment 727 of 2012 and s 32 notice matter number 42454 of 2006. There was nothing said by defence counsel in relation to the child pornography offences or the other s 32 notice offences which would have alerted his Honour to the possibility that the pleas of guilty entered with respect to those matters should not be accepted.
The appellant's case before this court relies upon the credibility of his affidavit sworn on 20 March 2013. It is impossible to place any reliance on the affidavit. My reasons for arriving at this conclusion are:
1.The affidavit is completely lacking in detail as to the circumstances surrounding the transactions the subject of the counts in indictment 727 of 2012. The statements made by the appellant in the affidavit are little more than bald assertion.
2.The affidavit does not deal with the statements made by the appellant to the author of the pre‑sentence report and the psychologist that he accepted the facts as alleged against him in respect of the indictable offences. Those admissions are inconsistent with the position adopted by the appellant in his affidavit. This is particularly stark with respect to the child pornography charges, in respect of which he admitted to the authors of the reports that he possessed the material, and that he was motivated by his attraction to 'small‑breasted women'. In relation to the fraud offences the subject of 727 of 2012, the gist of what the appellant told the report writers was that he used the monies obtained from the complainants for his own purposes, contrary to the instructions given to him by the complainants. While the appellant may have had an intention to later repay the complainants, that does not constitute a defence to fraud.
3.The appellant does not explain in his affidavit why he purported to sell to Mr Duke a vehicle that he did not own.
4.He does not explain in the affidavit why he did not tell Mr Jameson that he had purportedly sold the vehicle to Mr Duke.
5.He did not explain in the affidavit why none of the monies paid to him by Mr Sudic were used to buy the Nissan Skylines as the appellant promised he would, or why the monies were retained by him.
6.In respect of the fraud offences in the s 32 notice, the appellant makes no more than a bald assertion that he was confident that the cheques that he had written would be honoured. He does not support this assertion with any evidence that is capable of supporting this assertion, such as bank statements from the relevant account.
7.He says nothing in his affidavit in respect of the offences allegedly committed on 21 March 2007, save that he denies having false numberplates and being aware that his licence was under fine suspension. The veracity of the last statement is contradicted by what he said to police in respect of charge 42461 of 2006, when, on 27 July 2006, he admitted that he did not have a motor vehicle driver's licence.
8.The appellant does not condescend to any detail about his discussions with defence counsel during the proceedings on 12 October 2012, apart from saying that he told defence counsel that he wanted to go to trial but defence counsel said that he 'could not do this'.
9.In respect of s 32 notice matter 42454 of 2006, the appellant has placed no evidence before this court to support the contention that he made payments towards Ms Sutton's car.
10.No attempt was made by the appellant to put evidence before this court from Dr Barber to support his case. The appellant's counsel explained that this was not done because she assumed 'that [defence counsel] would give a different account' (appeal ts 4). Given the serious allegations made by the appellant about defence counsel's conduct, some attempt should have been made by the appellant to seek defence counsel's account of the relevant events.
In my opinion, the appellant's pleas of guilty were unequivocal. There is no reasonable basis to conclude that they were not true admissions of guilt. There was no basis for his Honour to reject them. Further, there is no reasonable basis to conclude that any miscarriage of justice has occurred. The proposed ground of appeal has no reasonable prospect of success. The appeal must be dismissed.
The orders I would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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