HIS HONOUR: This is an application pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001. Section 12(1) provides;
"Any person who has been convicted by the Local Court in the person's absence or following the person's plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court."
The applicant pleaded guilty in the Local Court on 13 May 2014. He gave notice of an application to set aside that plea on 21 August 2014. The application was heard and determined by Magistrate Still sitting in the Local Court at Burwood on 3 October 2014. The learned magistrate refused the applicant's application to withdraw his plea of guilty. The appellant was later sentenced by a Magistrate McManus sitting in the Local Court at Burwood on 10 December 2014. The applicant, in the alternative to the relief which I am currently considering, seeks to appeal against severity of that sentence should his primary application to this Court be unsuccessful.
The applicant was served with two court attendance notices. The court attendance notices were filed in the Local Court at Kogarah on 20 January 2014 and were first returnable on Tuesday 4 February 2014 at that Local Court. The first court attendance notice ("sequence 1") alleged this:
"Between 12.01am on 06/04/2009 and 11.59 pm on 15/04/2009 at Roselands, did dishonestly obtain for the said Jihad Assi a financial advantage, to wit, $137,819.70, by deception, namely by purporting to be a male by the name of Isaac Hamdan and applying for a Westpac Loan using fraudulent means and documents".
The second court attendance notice ("sequence 2") alleged this:
"Between 12:01am on 12/05/2009 and 11:59pm on 16/05/2009 at Roselands did dishonestly obtain for the said Jihad Assi a financial advantage, to wit, $183,066.79, by deception, namely by purporting to be a male by the name of Issac Hamdan and applying for a Westpac loan by using fraudulent documents and means."
The applicant applied for Legal Aid. Ms Christine Manolakos of Marrickville was appointed by Legal Aid to appear for Mr Assi. According to Ms Manolakos' affidavit of 2 October 2014, which is exhibit 4 before me, the Legal Aid had requested that Mr Assi's matter be dealt with "in-house" but the applicant was not happy with that decision and the matter was transferred by Legal Aid to Ms Manolakos. Ms Manolakos first appeared for the applicant when the court attendance notices were first returnable on 4 February 2014. At that appearance the matter was transferred to the Local Court at Burwood. This Court does know that the Local Court at Kogarah has been closed.
The matter was before the Local Court at Burwood on 11 February 2014 and then again on 25 March 2014. On that occasion the endorsements appear to indicate that the Crown was considering an election to have the matter dealt with on indictment. The matter was then adjourned to 7 April 2014. On that occasion the Local Court noted that no election had been made by the Crown for the matter to be dealt with on indictment. It was then stood over for mention on 22 April 2014. On 22 April 2014 the matter was set down for hearing for two days commencing on 13 May 2014. On 13 May 2014 a plea of guilty was entered by the applicant or on his behalf. That plea was entered before Magistrate M O'Brien. His Honour set the matter down for sentence for 5 August 2014. The sentence did not proceed on 5 August 2014 but was adjourned to 21 August 2014 on which occasion notice was given of the intention to seek the leave of the Local Court to withdraw the plea of guilty. That application, as I said, was heard and determined on 3 October 2014. Eventually the sentencing hearing was completed on 10 December 2014.
The sequence 1 offence concerns a hire-purchase agreement over a 2009 Caterpillar 432E backhoe loader. The vendor of that piece of plant was ZZ Co Pty Limited. It wished to transfer the plant to Dolphin Point Apartments Pty Limited of 130 Princes Highway Arncliffe. Mr Stephen (or Steven) Nguyen, a mortgage broker, of TN Mortgage Lending Pty Limited of Fairfield, acting for Dolphin Point Apartments Pty Limited approached a Mr David Evans of R and D Consulting Pty Limited, which was an asset finance broker. According to a statement prepared by Mr Evans, Mr Nguyen did not have asset lending experience or an interest in asset lending and hence his approach to Mr Evans to act on behalf of Dolphin Point Apartments Pty Limited. There is in the evidence that I have read for this application a standard commercial hire purchase agreement between the Westpac Banking Corporation Limited and Dolphin Point Apartments Pty Limited which was initially dated 15 April 2009 but was redated 17 April 2009. It was signed on 15 April 2009 by Isaac Hamdan who gave as his residential address, 12 Leslie Street, Roselands, and provided a date of birth of 2 February 1970. The moneys advanced by Westpac Banking Corporation Ltd pursuant to this hire purchase agreement were $154,000. The Crown case is that most of that money was received by the applicant and disbursed by him mainly in the Lebanon.
The sequence 2 offence concerns almost identical facts; the piece of plant in question for the sequence 2 offence was a 2009 Caterpillar 320D Excavator and the sum advanced by the Westpac Banking Corporation Ltd was $195,800. The amount alleged to have been received by the applicant is that pleaded in the second court attendance notice. The standard commercial Hire Purchase Agreement for the sequence 2 offence bears a date 16 May 2009. As I understand the pleading and the submissions before me, the Crown case is that Isaac Hamdan, a director of Dolphin Point Apartments Pty Limited, was in fact the current applicant, using an alias and a false identity.
For a number or years prior to 2009 the applicant had worked for a Mr Ian David Lazar. According to his affidavit which was in fact affirmed on 4 September 2014 and bears on the front cover the date 2 September 2014, which is exhibit 2 before me, the applicant had worked for Mr Lazar or one of his companies as a project manager for some five years between 2003 and 2008. According to paragraph 7 of the applicant's affidavit he instructed Ms Manolakos that he was not guilty and that he was a "victim of Lazar". Another acquaintance of Mr Lazar was Mr Owen Salmon who describes himself as a "business consultant". He met the applicant around August 2004 at the Bligh Street offices of Mr Lazar whom he identifies as formerly being known as Ian Rogut. Mr Salmon in his affidavit of 4 September 2014, which is exhibit 3 before me, says that Mr Lazar became Mr Salmon's client, Mr Salmon's business providing to Mr Lazar "consulting and bookkeeping" services. Mr Salmon's affidavit contains this matter:
"7. I am aware of Mr Assi bringing many loan customers, property developments and business interests to Mr Lazar for assessment. Many of these I was asked to assess in some way. This was done on the promises that Mr Assi would receive commissions for such work. I worked with Mr Assi on a number of these property and business matters over a lengthy period.
8. Mr Lazar is the target of a major NSW Police Taskforce (McMaster) with which I could safely say I am heavily involved…Recently (6 March 2013) a Fraud and Cybercrime Squad (FCS) officer whom I know well lodged an affidavit in the Supreme Court proceedings (matter 2009/295278). In the affidavit he says 'In February 2012, the FCS commenced a protracted investigation into Mr Ian David Lazar et al who are believed to be involved in serious organised criminal activities within Australia'.
9. I raise this background as I am aware of dozens of victims of Mr Lazar and I still work with many of these people on a daily basis. I am a similar victim. I am aware due to working for Lazar and now with his victims, of how he operates and what he does to people. ICG had Assi as one of these victims.
10. Mr Assi continued to hang out at the Lazar offices well after I had drawn a line in the sand and moved on. By that stage I was out of pocket several million dollars for which I am now proving fraud myself. The nature of these police operations prevent me from elaborating too much but suffice to say I verily believe that Mr Lazar will face many counts of fraud on matters relating to fraud and conspiracy against my company, against numerous other victims whom I am assisting and I understand numerous criminal associates of his will also be charged".
I have quoted that extensively in order to set out the background to the application in the Local Court from which leave to appeal is sought.
Paragraph 7 of the applicant's affidavit says that on 4 April 2014 he contacted Mr Owen Salmon. Paragraph 11 of Mr Salmon's affidavit says that on that day he contacted Mr Assi. I can accept that they made contact with each other, but who initiated the approach is difficult for anyone to know because of the conflict in the evidence. The applicant's affidavit gives details of conversations between the applicant and Mr Salmon as to Mr Salmon's involvement in investigating offences that are alleged to have been committed by Mr Lazar. According to par 10 of the applicant's affidavit, on 22 April he sent a copy "of the brief" to Mr Salmon and after he did that they met for coffee on 30 April 2014. Paragraph 10 of the applicant's affidavit may not be entirely accurate and he may have only sent part of the brief because at par 18 he attests to providing a "full copy of the brief" to Mr Salmon on 17 July 2014, that is after he had entered a plea of guilty.
Paragraph 11 of the applicant's affidavit indicates that sometime between 4 April 2014 and 30 April 2014 he spoke with Ms Manolakos about Lazar and his activities. The affidavit of the applicant continues thus:
"12. I mentioned to Ms Manolakos that I am assisting the Fraud squad against Lazar prosecutions, and it might take some time to finish the full statement. She requested I get the fraud squad to write a letter of comfort. I did mention to her I was innocent and pleading not guilty all same time".
It is difficult to know what exactly the applicant meant by saying that he was assisting the Fraud Squad. There was no evidence given that he had prior to this time made any approach to any officer of the Fraud Squad, merely that he was in contact with and in conversation with Mr Salmon. That may have led the applicant to believe that he was somehow assisting the Fraud Squad but there was no direct evidence that he had done so other than the averment in the paragraph of his affidavit that I have just quoted. The affidavit of the applicant then says this:
"13. On 5 May 2015 Ms Manolakos again spoke to me and requested follow up with the Fraud Squad to get a letter to assist their cause. She believed my innocence and she hoped that letter will make the DPP drop all the charges.
14. On 6 May 2014 CM Lawyers [Ms Manolakos' firm] had agreed with me they would call police directly and seek an agreed adjournment. This was on the basis that my evidence would assist the guilty plea and that Mr Lazar was under heavy investigation and that could provide insight into this case over time.
15. Later on, Owen received a call from Steven Kassem who is a solicitor in her [Ms Manolakos'] office. He seemed to have a very different understanding of what Ms Manolakos and he had discussed. This greatly concerned him.
16. On 15 [sic] May 2014 my court was adjourned until 5 August 2014. Ms Manolakos advised me to plead guilty on the day of court without any written instructions or any prior discussion. She said, 'You need to plead guilty because you got the money.' I said, 'I received the money but I didn't do any dishonest thing, I wasn't aware it was illegal, or what I did is tried to refinance all my properties. I followed the broker's instructions.', then she said, 'if you receive some money then you are guilty. You have to change your plea to guilty with no admission.' I said, 'What is no admission?' She said, 'You didn't know what you were signing.' I agreed to plead guilty to receive some money without doing anything illegal. In a way I was forced to plead guilty to get the adjournment. I did not understand that consequence and thought the interview now pending with NSW Police Fraud and Cybercrime squad would assist his [my] case. She kept saying we will be changing the facts and will strike a deal with the police."
The affidavit of the applicant details at some length what happened subsequently. It is important however to note two electronic communications. The first is dated 4 August 2014 and was transmitted at 10.12pm. It is addressed to Christine@cmlaw.com.au and I infer is addressed to Ms Manolakos. The email says this:
"I am a bit concerned about the court tomorrow, after I saw you today and we agreed to seek adjournment for two months to allow for my wounds to heal and my health gets better. I received a call from Owen, saying that Steven from your office called him and said that 'Christine is not going tomorrow to the court and he thinks sentencing might go ahead'.
If this is the case, and they refuse to postpone the court, I would like to seek to change my plea to 'not guilty' and prepare a defence. Ian Lazar is going to be charged on or before the 10 of October. The court or the police must know that the company in question was set up by Owen Salmon, under the instructions of Lazar and I was appointed as a director by them. We need to need link all these evidence to Lazar.
In the meantime please give me a ring when possible.
Cheers"
The tone of that email is cheerful, positive and respectful. It does not show any concern by the applicant about Ms Manolakos' competence or inability to adequately represent him. Furthermore it indicates that the applicant had an understanding of what was happening. He clearly knew that he had entered a plea of guilty. He knew that the matter was listed for sentence on 5 August and he knew that it was necessary to obtain evidence which inculpated Ian Lazar, perhaps tending to exculpate the applicant. The reference to the applicant's "wounds" and the need for his health to improve is, as I understand it, a reference to his recently having been treated for certain abscesses.
It is clear that Mr Kassem had told the applicant that Ms Manolakos would not be appearing at court on 5 August 2014. She did not. Mr Kassem appeared and the matter appears to have been adjourned to 21 August without what might be described as "drama". However it is clear from the email of 4 August 2014 that the applicant believed that it was in his best interests to get an adjournment for "two months" rather than for merely two weeks.
The second communication to Ms Manolakos by email was sent on 11 August 2014 at 9.31pm. With necessary corrections, the email is this:
"On our last meeting three weeks ago, when I and Owen Salmon met in your office, we raised the point that I might need to change my plea based on the evidence and statements of Mr Owen Salmon and the facts that the company in question 'Dolphin Point Apartments' [had] been set up by Owen Salmon under Lazar's instructions and the second company 'ZZ' again was set up by Stephen Nguyen an accomplice of Lazar. The submission to the police was to do thorough investigations of Lazar, the broker, Stephen and the tax agent.
You mention in your office that you will seek a Counsellor opinion and apply for one through Legal Aid. Also asked us if we can provide a detailed statement from Owen Salmon, which he did.
In the meantime I had a surgery and you managed to postpone the trial till the 21st of August.
Again, today I spoke to Steven [Kassem] regarding this case, he is a bit worried that it is too late to change the plea and he can't apply for a barrister through Legal Aid for lack of time or because it is a Local Court.
I don't know what is going on, there is some miscommunication here, my instructions were very clear, if there is no deal on the table between us and the DPP, and the submissions hasn't been done properly or nothing has been done to alter the facts and introduce Lazar to this case, I will need to change my plea to not guilty.
Steven has raised a good point that last time he attended the court, that the magistrate doesn't know anything about me helping the fraud squad with Lazar's case and I was a victim of his all his fraudulent activities for the last ten years.
Tomorrow hopefully I will do a statement for the police for Lazar's case, it is very linked to my allegations and we need to act very quickly.
Steven promised to engage a barrister and seek his opinion on the whole case before it is too late.
Someone has to call the prosecutors and explain our intentions before the Court.
Thanks."
The fifth paragraph of that email is very significant. It does refer to the applicant's instructions to Ms Manolakos. Those instructions concerned a "deal", an agreement between the applicant and the prosecution, that a set of facts to be agreed would be altered in such a fashion as to inculpate Lazar and thereby exculpating the applicant, and there clearly being some comfort offered to the prosecution, an offer to assist the prosecution in pursuing Lazar. It is also clear from that email that the applicant had not yet provided any statement to the police and one would have thought that that ought to have been done before he entered a plea of guilty. That would have been the prudent thing to do.
In the Local Court the Crown relied on an affidavit of Ms Manolakos affirmed on 3 October 2014, which became exhibit 3 in the Local Court and is exhibit 4 before me. In it Ms Manolakos refers to attending court on 4 and 11 February 2014 and on 8 and 22 April 2014. Her referral to 8 April is clearly a reference to 7 April, as the court records clearly show the mention was on 7 April. After 22 April the next court appearance was the date when the matter was listed for hearing, 13 May 2014. Paragraphs 7 and 8 of Ms Manolakos' affidavit are these:
"7. On or about 8 May 2014 I had discussions with Detective Sergeant Joerdens from Kogarah police whereupon Mr Assi was willing to plead guilty to the offences. This would enable us to seek an adjournment so that an adjournment could be obtained to enable Mr Assi to provide a statement in another matter relating to a financier known as Mr Lazar, who was being charged with serious criminal [offences] relating to financial fraud. I recall the detective agreed that an application would be made to the court for the adjournment and a letter of comfort could be provided to the court so as to make Mr Assi's sentencing options easier. Mr Assi provided me with instructions to proceed with this approach.
8. On 13 May 2014 at Burwood Court the matter was then set down for sentencing on 5 August 2014 and Mr Assi's bail reporting was reduced to one day per week (i.e. Mondays). Mr Assi instructed Ms Manolakos after lengthy discussions to enter the plea."
As could be expected the Crown sought to cross-examine Mr Assi on his affidavit and the applicant sought to cross-examine Ms Manolakos on her affidavit. According to the applicant's evidence-in-chief Ms Manolakos was late arriving at court on 13 May. He went on to say this:
"No, we didn't have a lengthy discussion actually, we were waiting for her, she was late that day. When we came into the Court she said the best option you have to plead guilty and maybe I can get some time and then we wait for Mr Lazar to be charged and we can drop the charges. Said to me, yeah, if we do the, only five minute job, yeah."
He went on to say that Ms Manolakos turned up at 10.10 or 10.15am, that the conversation was only two minutes long and that Ms Manolakos did not on that occasion go through the elements of the offences with which the applicant had been charged prior to receiving his instructions to plead guilty. According to the evidence given in-chief by the applicant what occurred at court on 13 May was done in a hurry and merely done to "buy some time". In cross-examination the applicant protested that Ms Manolakos advised him to change his plea "without even telling what's the consequences of it". He said later in his evidence that he was confused by Ms Manolakos and that she "was never clear about anything" that she said to him. Later in cross-examination the applicant agreed that he had previously been charged with having goods in custody for which he received the benefit of s 10, that he was also charged with demanding property with menaces, for which he received a suspended sentence in the Local Court. He agreed that in respect of those offences he had used a solicitor and indeed that the suspended sentence matter was a matter that eventually came before this Court. Later in cross-examination, when pressed about his knowing that if he pleaded guilty it meant that he was not innocent the applicant said that he was advised by Ms Manolakos that as he had got some of the proceeds of the fraud that meant that he was guilty. He also referred to being "confused". This exchange also occurred:
"Q. You pleaded guilty because you intended on providing information to the police that would assist police in their charges or the matter against Mr Lazar?
A. Yeah.
Q. By doing so you hoped to receive a lesser sentence?
A. Well, she didn't explain it to me up to that point back then. She said just plead."
The applicant was then pressed and adopted a position which ended up with this exchange:
"Q. So you say and you're standing by that evidence that the only reason you entered the plea is to get an adjournment to argue later?
A. She said to me let's get an adjournment, postpone it, help the police all because you took money, that's the whole understanding even though - and then we met her afterwards with Owen, even have a witness when we met her. She said to me, yeah, yeah, you're not guilty, okay, let's work about this one first."
Clearly that answer was not responsive. Later the applicant said this:
"As I said, you can tell I'm so confused because she confused me a bit more and every time I ask her technical question she said, no I have to seek legal advice, I have to seek barrister advice, she confused me. I never get answer from her."
The applicant then went on to say that he did not know what was meant by the word "deception", which was a word used in each court attendance notice. Later he said that when he obtained the court attendance notices he did not read them "thoroughly". This exchange then occurred:
"Q. Well, you read the facts and you understood that what the facts were saying was that you applied for a loan and you pretended to be someone else?
A. Yeah, that's what she told me there, yeah."
At the foot of p 10 of the transcript of 3 October 2014 and the top of the following page the applicant was taken to the facts sheets that had been provided to him by the police and whether he knew that the police were alleging that prior to April 2009 he had obtained by some unknown means a fraudulent New South Wales driver's licence and a fraudulent Medicare number in the name of Isaac Hamdan and that the RMS had established that both those forms of identification were fraudulent. He agreed that he knew that and it was part of the Crown case. He also admitted that he was a director of the company ZZ Co Pty Ltd and that he was a director of Dolphin Point Apartments Pty Ltd but he said that he was appointed to both companies by Mr Lazar, which itself is irrelevant, but then said that he did not sign any of the documents involved in obtaining the two loans.
Later in cross-examination the applicant gave some evidence which, it has been submitted by the Crown, was incredible. One answer recorded on p 12 commencing at line 32 is this:
"That's under the impression what she told me exactly the and she understand my case, 'so plead guilty, we know you're innocent, we'll make a - because you took money we'll plead guilty and then we'll worry about it later'."
One can understand a lawyer to whom a client protests that he or she is innocent accepting what the client tells the solicitor but continuing to advise that although that may be the subjective view of the client it might be in the client's best interests to plead guilty in order to obtain a discount on sentence if the evidence against the client is particularly strong. However, it defies belief that a lawyer would tell a client that knowing that he is innocent nevertheless to plead guilty and that things could be later investigated and somehow put right.
It was then suggested to the applicant that he pleaded guilty in order to obtain a reduced sentence. He said this:
"No, she never mentioned about lesser sentence, all she saying, we're hoping they get charged because he did all the fraud, and you get acquitted. She always promise me acquitted."
It is difficult to see how a lawyer who advised his or her client to plead guilty was promising the same client that he or she would be acquitted. Later this exchange occurred immediately prior to re-examination:
"You instructed Ms Manolakos in as early as April that you intended to plead guilty?
A. How did I instruct her?
Q. You told her, 'I want to plead guilty' in April?
A. No, I didn't tell her to plead guilty.
Q. And you told her to call the police on your account?
A. I told her to call the police to see what's happening with Ian Lazar's case and see what - 'yeah, what can you do with it because I am innocent' and said to me, 'let's plead guilty and then we can [strike] a deal with them', she try to do something, I thought. I know I'm innocent like I kept saying the same word, 'I am innocent'. I even took a person with me to that meeting afterwards which...(not transcribable).. to say the case, and she said, 'yeah, you're innocent' and that's why - she did the same to me with a witness next to me, Owen Salmon".
It was then pointed out that Mr Salmon never went to Ms Manolakos' office prior to the entry of the plea of guilty on 13 May 2014.
The protestations of being confused or ignorant or misled appear in my view to be quite inconsistent with the gist of what is contained in the two emails, which I quoted at length, which clearly indicate that the applicant was aware that a plea of guilty had been entered by him, that it was part of a deal between him and the prosecution, the idea being that he would give an undertaking to give evidence or to cooperate with the prosecution in amassing evidence concerning Ian Lazar and obtain a letter of comfort which would give the applicant both a discount for his plea of guilty and a discount for his cooperation with the relevant authorities.
The matter is complicated, however, by confusing evidence, and I use those words advisedly, given by Ms Manolakos. Ms Manolakos was admitted to practise in 1991. She is on the Legal Aid criminal lawyers panel and had been on that panel since some time in 2012. She swore that when the applicant became her client she went through each of the facts sheets with the applicant. Those facts sheets would have outlined the elements of each charge. On p 18 this evidence was given:
"Q. What did you explain to him about the Court Attendance Notice if anything?
A. I explained to him the charges that he was faced with. I explained to him the seriousness of the matter and the effects of the charges.
Q. Do you recall the words that you used when you explained it to him?
A. No, I wouldn't recall the exact words.
Q. When you said 'the nature of the charges', what do you mean?
A. I explained to him that the charges that he was facing were serious charges, that they do carry a gaol term, but basically he at the beginning of the matter we discussed his options and it was agreed that he would enter a plea of guilty on the basis that he would assist in another matter that was associating [sic] with this matter. On that basis I had a discussion with the detectives at Burwood Court, he was with me at that conference and we agreed that we would enter the plea of guilty on the basis that we would get our discounts in sentencing and our letter to assist in sentencing as well. Mr Assi was present on that occasion and he agreed."
The important point to glean from that evidence is that there was some meeting involving detectives, Ms Manolakos and the applicant at which it was agreed that the applicant would plead guilty and assist the police with their enquiries clearly concerning Mr Lazar and that he would obtain from the police a letter of comfort which would enable a discount for assistance to authorities to be given to the applicant as well as the usual discount for a plea of guilty.
After that evidence Ms Manolakos was asked to try to date that meeting. Ms Manolakos said that the meeting was in a conference room at the Burwood Local Court. She was asked whether it was on 13 May when the matter was first listed for hearing. She said it was not on one of those days but on a day that the matter was mentioned prior to 13 May. This caused much confusion. Clearly the matter was mentioned before the Local Court on 7 April and 22 April 2014. The upshot of the mention of 22 April 2014 was to set the matter down for hearing with an estimate of two days commencing on 13 May 2014. If there had been a conference at court in April 2014 in which it was agreed that the applicant would plead guilty then there was no need to set the matter down for hearing for two days commencing on 13 May 2014. Later in her evidence- in-chief Ms Manolakos said that the instructions to plead guilty were given either on 7 or 22 April although again she mistook 7 April for the 8 April. Ms Manolakos was then asked this question and gave the answer following:
"Q. What did you explain to him, if anything, about pleas of guilty and what they mean?
A. I explained to him that a plea of guilty is accepting the charges, that he was obviously consenting and agreeing that he was - that he had committed the offence."
She then pointed out that there was a discussion with the applicant about the likely sentence outcome and she said that she had pointed out to the applicant that he could obtain a suspended sentence pursuant to s 12 or an order to perform community services. The confusion arising from Ms Manolakos' evidence-in-chief was certainly highlighted in cross-examination when she thought that the matter was listed for sentence on 13 May and did not realise it was listed for hearing on 13 and 14 May.
Leaving that matter to one side, the other concerning matter arising from the evidence of Ms Manolakos is this:
"Q. I'm suggesting that a conversation on 13 May 2014 took place between yourself and Mr Assi and this is what you said to him:
'You need to plead guilty because you got the money'?
Did you say that to him?
A. I don't recall saying that in those exact words.
Q. Could you have said something along those lines?
A. Possibly.
Q. See, you said in the beginning you took Mr Assi through the facts of the matter, correct?
A. Yes.
Q. I'm going to suggest on 13 May that you never explained to him the elements of the offence, did you?
A. I don't recall that.
Q. Because the learned sergeant asked you, 'What did you explain when he pleaded guilty?' and you said that he was accepting the charges and consenting and agreeing that he had committed the offences. Can I suggest that you told him because he'd received the money that therefore he was guilty?
A. I didn't say that.
Q. Well you don't recall whether you said that, was the second--
A. I didn't say that in those exact words.
Q. But at no stage, can I suggest, did you explain to him the elements of the offence in terms of any deception and/or dishonesty?
A. I don't recall."
Looking at the evidence holistically it is clear to me that the meeting with the detectives at which the applicant was present when Ms Manolakos discussed the concept of the applicant's giving assistance to the prosecuting authorities and obtaining a letter of comfort together with an entering a plea of guilty did not take place at Burwood Local Court on a mention date. Indeed, according to Ms Manolakos' evidence, it occurred on 8 May 2014 when she had a discussion with Sergeant Joerdens from the Kogarah Police. It may well be that the conference took place at Kogarah Court House or even at Kogarah Police Station. Furthermore, this appears to be the same meeting that is deposed to in pars 13 and 14 of the affidavit of the applicant made on 4 September 2014. He discloses these as events on 5 and 6 May involving Ms Manolakos and the police. The evidence suggests strongly to me that there was a meeting sometime in early May 2014 not involved with the court proceedings which was attended by the applicant, Ms Manolakos and probably Detective Sergeant Joerdens and a deal was made, the deal which is referred to in particular in the fifth paragraph of the applicant's email of 11 August 2014.
Still LCM did not canvass the facts at any great length. However, at p 25 line 22 the learned magistrate quoted the fifth paragraph of the email of 11 August 2014 and continued thus:
"It seems from the evidence before the Court that he has entered a plea expecting by either assisting the police or getting a letter of comfort to obtain a more lenient sentence, and that is the evidence of his lawyer as well. The emails and the account seem to me to support that view and where there is any conflict between E [sic] and his solicitor I prefer the evidence given by his solicitor."
The learned magistrate then refers to the affidavit evidence of Ms Manolakos in which she did not accept certain portions of conversation alleged by the applicant in a number of paragraphs of his affidavit. His Honour then continued thus:
"So I do not think the defendant is inexperienced in terms of either business or of his business with the courts. I think he knew what he was doing when he entered the plea, that is to receive a discount or comfort on settlement and that appears to me to be consistent with the evidence of his lawyer and that she explained the seriousness of the matter to him and the sentence options that might be achieved.
I accept the evidence of the lawyer that the plea was entered on his instructions for the purpose of receiving a benefit or a reduction in sentence. She goes further and says that the defendant was himself present during a meeting with detectives, where the plea of guilty was agitated and that claim by her, that he was part of that process, has not been disputed".
I should point out that insofar as the evidence of Ms Manolakos does refer to there being a meeting involving herself, the applicant and a detective or detectives, or other members of the Police Force, there was no denial, no direct denial of it by the applicant.
Clearly the Magistrate preferred the evidence of Ms Manolakos to the evidence of the applicant. I have not heard the evidence of either of those persons. I am only able to read what they are recorded as having said and it has to be acknowledged that sometimes the recordings themselves can be inaccurate. It is important to bear in mind the limitations that there are upon a judge hearing an appeal under the Crimes (Appeal and Review) Act 2001 where the hearing is confined to documentary evidence. In Charara v Regina [2006] NSWCCA 244 Mason P, with whom Kirby and Hoeben JJ concurred said this:
"17. The appeal is to be by way of rehearing on the Local Court transcripts (section 18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (section 18(2)).
18. The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The judge is to form his or her own judgment of the facts so far as able to do so, i.e. recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 412 at 424-5, Paterson v Paterson [1953] 8 CA 74; (1953) 89 CLR 212, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118).
19. The nature of an appeal 'by way of rehearing' has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must be sought in the language of the particular statute. One thing, however, is clear. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits" [Fox at 118 [22] per Gleeson CJ, Gummow and Kirby JJ]. Referring to the 'requirements, and limitations of such an appeal', their Honours continued (at [23], footnotes omitted):
'…On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other hand, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations included the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.'
20. In Da Costa v Cockburn Salvage and Trading Pty Limited [1970] HCA 43; (1970) 124 CLR 192 at 208-9 Windeyer J described a difference between an appeal by way of rehearing on the one hand and a re-trial or hearing de novo on the other in the following terms:
'The rule…provided that all appeals shall be 'by way of rehearing'. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the cases to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it was when the appeal is heard not as it was when the trial occurred… [A power to draw inferences of fact and to give any judgement that ought to have been given] does not…curtail the recognition or respect an appeal should accord to the decision of the trial judge'.
21. These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses (Bell, Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210 at 219-220).
22. The appellate role of the District Court in the present context is further reinforced by the reference to 'appeal' in ss 18 and 19 and by the power, conferred by s 20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any 'fresh evidence' that has been admitted and making up its own mind on the issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42] - [43]). As observed in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the 'natural limitations' stemming from proceeding wholly or substantially on the transcripts record".
[2]
LUNCHEON ADJOURNMENT
HIS HONOUR: The question of the nature of the appeal from the Local Court to this Court was more recently considered in AG v DPP (NSW) [2015] NSWCA 218 at [5], Basten JA pointed out that a judge on appeal is bound to observe the "natural limitations" which arise when appeal is conducted by reference to a documentary record. There appears to be little dispute about that requirement. This authority makes it clear that principles such as those enunciated by the High Court of Australia in Fox v Percy [2003] HCA 22; 214 CLR 118 apply.
It is perhaps appropriate to go back to consider what fell from McHugh J in Abalos v The Australian Postal Commission (1990) 171 CLR 167. Commencing at 178 his Honour said:
"In SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, Lord Sumner pointed out that:
'not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher ourt ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend upon question when a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms in any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone'.
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v Thomas [1947] AC 484 at 488.
In the present case, the learned trial judge's decision on the issue of supervision was based on the evidence of Mrs Archer. In addition to hearing Mrs Archer giving evidence, her Honour had the great advantage of seeing both a video cassette of Mrs Archer operating the coding machine and the in-court demonstrations of her operating the keyboard. She did not refer to the evidence which Professor Ferguson had given on the issue of supervision. The learned trial judge formed the view that, for a person who performed the work in the manner which Mrs Archer demonstrated, the risk of injury was minimal. Her Honour was not bound to accept the whole of Professor Ferguson's evidence concerning supervision even if it had the effect which the Court of Appeal thought it had. She accepted his evidence concerning the risk of injury which was inherent in the system and his evidence that he had communicated his views to representatives of the defendant. But she made no express findings about the rest of Professor Ferguson's evidence or his general reliability as a witness. If there is any inconsistency between Professor Ferguson's evidence and her Honour's findings concerning supervision, then she must be taken to have rejected that evidence. Certainly, she seems to have rejected his evidence that the postures adopted were partially dictated by the visual demands of the task and partly by the action required of both hands.
As I pointed out in Jones v Hyde (1989) 63 ALJR 349 at 351, where a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue".
More recently that authority and similar authorities were reviewed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. At [26] Gleeson CJ, Gummow and Kirby JJ said:
"After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by the impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v The Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decision was simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
[27] The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellant decision-making throughout Australia."
McHugh JA revisited the issue at considerable length. His Honour commenced that discussion at [65]. His Honour then said this:
"[66] Mason CJ, Deane, Dawson and Gaudron JJ, the other members of the Court, agreed with my judgment. Abalos was applied in Devries v Australian National Railways Commission where Brennan and Gaudron JJ and myself said [(1993) 177 CLR 472 at 479]:
'More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellant court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has improperly misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.'
[67] There was nothing novel about these statements. They derive from principles in decisions of this Court and the House of Lords stretching back over the best part of a century."
Between [68] and [89] his Honour then considered those authorities. His Honour then said this:
"[90] It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellant court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) (1999) 73 ALJR 306, for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it.
[91] Legal doctrine is most likely to command the respect of the profession and, consequently, the public when it evolves by processes of induction and deduction on the experience of decided cases and the application of established legal principles to cover new situations. To now reject the doctrines to which Abalos and Devries in effect would be a revolutionary, not an evolutionary step."
I ask myself in the current application, is there anything that points decisively to error on behalf of Magistrate Still and to that question I answer, no. Indeed the extended view of the facts into which I entered earlier in these reasons points me to exactly the same conclusion as that reached by the learned Magistrate. Furthermore there was nothing in my view improper or unacceptable in the learned Magistrate referring to the fact that he did not believe the current applicant was "inexperienced" in either the commercial sense or as regards the law. Clearly the appellant had spent either five, and on another view of his evidence, 6 years working with and under Mr Lazar in various commercial undertakings and the appellant's own experience of the criminal law points to his having an understanding of the whole process, as indeed significantly does the email of 11 August 2014 upon which both the learned Magistrate and I relied.
There is no suggestion that his Honour misdirected himself in point of law. Those directions he commenced towards the end of his judgment at p 26 line 8 of the transcript of 3 October 2014. I myself have recently had to consider the same law in Hollingsworth v Bushby [2014] NSWDC 101 from which there was an unsuccessful appeal to the Court of Appeal. I reviewed the relevant legal principles between [24] and [26]. It is to be borne in mind that the onus lies upon the applicant to demonstrate that leave should be granted to him to withdraw his plea of guilty. The applicant must establish a good and substantial reason for the Court taking the course of granting him leave to withdraw his plea of guilty. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection. The authorities which are cited in particular are the restatement of principles contained in R v Rae (No 2) [2005] NSWCA 380 clearly refer to the situation, which here obtains, of a party agreeing to plead guilty in order to obtain a lesser sentence. The Magistrate accepted the evidence of Ms Manolakos that the applicant decided to enter a plea of guilty knowing what it involved in order to obtain a discounted sentence. There is nothing to suggest that the decision made by the applicant was not initially made consciously with the prospect of perceived advantage, nor does the evidence as accepted by the Magistrate suggest that the applicant did not entertain a genuine consciousness of guilt. Indeed, Ms Manolakos said that he did acknowledge that he was guilty.
The assertion by the applicant that he thought he was guilty merely because he had been told by Ms Manolakos that he was guilty because he had received the benefit of money, appears with the utmost respect to be ex post facto rationalisation, and such can be implied from what the learned Magistrate said.
The applicant has the onus of proving error in the decision of Magistrate Still. As found by the learned Magistrate, his decision was made freely and voluntarily. That was the evidence of the solicitor which his Honour accepted. No real grounds had been established to warrant the interference of this Court in the decision reached by the learned Magistrate. The application for leave to appeal is accordingly dismissed.
[3]
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Decision last updated: 29 January 2016