Bagshaw v R [2009] NSWCCA 32 | Case summary

Leith Gordon BAGSHAW v REGINA Judgment 1 GROVE J: Leith Gordon Bagshaw (the applicant) has brought three applications for leave to appeal against judgments or rulings of judges in the District Court. The applications are brought pursuant to s5F of the Criminal Appeal Act 1912. Mr Bagshaw has pursued the applications in person. It is necessary to appreciate the limits to the jurisdiction exercisable pursuant to that provision and it should be noted that the first issue is the necessity to demonstrate that leave is warranted. Ordinarily a factual error does not satisfy the requirements to found a grant of leave: R v Matovski (1989) 15 NSWLR 720. 2 I will in due course deal with the applications in sequence and they can be referenced by the identity of the particular judge concerned but first some background needs to be sketched. 3 On 12 October 1993 the applicant was made bankrupt upon a creditor's petition. He was discharged from bankruptcy on 14 May 2002. The Crown allegations are that between 1995 and 1999, without disclosing the extant bankruptcy, he entered various agreements to obtain goods, services or credit and he was consequently charged with seven counts contrary to s 269(1)(ac) of the Bankruptcy Act 1966. The charges were listed for trial at Sydney District Court on 24 February 2006. The applicant did not appear for trial and a bench warrant for his apprehension was issued. It was executed in March 2008 when he was arrested in Queensland and remanded to New South Wales. 4 Thereafter a series of listings occurred in the District Court and at these the applicant was represented by counsel, Richard Killalea. On 10 April 2008 the applicant was arraigned before Sweeney DCJ and he pleaded guilty to four of the counts in the indictment and not guilty to the remaining three counts. Subsequently he has made application to reverse the pleas of guilty but this was refused by Syme A/DCJ. The applicant has not been sentenced on those counts and the refusal is the subject of one of the applications before the Court. 5 The trial on the three counts upon which the applicant has pleaded not guilty was scheduled to commence before Puckeridge DCJ on Monday 3 November 2008. Since the pleas before Sweeney DCJ the applicant has no longer been represented by counsel and he has appeared in person. In the absence of the jury panel he sought to ventilate several complaints and to that end he presented a notice of motion. This handwritten document presented the following prayers: "1. Prosecutor the stand down for breaching code of ethics. 2. Release from bail. 3. Release bail money to rightful owner." 6 The motion was supported by an affidavit by the applicant. The assertions therein were substantially repeated in a written submission in support of the application to this Court which I will set out. 7 Puckeridge DCJ did not accede to the prayers in the notice of motion, however, in the course of exchange between counsel, the applicant and the Bench his Honour expressed concern about the understanding by the applicant of the irrelevance or otherwise of the Federal Criminal Code to the three charges in the indictment which was scheduled for trial. In short, the application of the Code would seem to place upon the prosecution an additional ingredient of proof to what would be required if the Code did not apply. His Honour adjourned the hearing in order to enable the applicant to seek appropriate advice. 8 It is not an issue before the Court at present but it can be observed that the application of the Criminal Code to offences against the Bankruptcy Act was achieved by an amendment inserted by the Parliament in the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 which had a provision as to its commencement specifying 28 days after receiving Royal Assent. Assent was given on 6 April 2001 and the commencement date was therefore 4 May 2001. The latest date of offences charged against the applicant is in 1999 and the Criminal Code therefore does not apply to them. 9 The document filed by the applicant sets out grounds and these are stated thus: "Judge Puckeridge erred on the notice of motion - re Bolster. Grounds - overwhelming evidence 22.8.08. It is not a common phrase. Further submissions will be added." 10 In accordance with the usual practice the applicant was required to file written submissions and in relation to this matter they were as follows: " SUBMISSIONS AGAINST THE DPP BARRISTER RE MR BOLSTER 1. He has deliberately lied to the full Court. In his submission to the full Court before Simpson, McClellan, Bishop (sic) he stated that he had a full and complete set of the original documents. Puckeridge made him present all the documents to the Court. The documents he presented were not originals or complete. a. Where are the false taxation documents? b. Where are the rest of the documents of the other application? 2. He lied on further submissions to the Full Court, 2nd June AFP documents which have been stolen from the Court files. He also misled the District Court by putting up the false Taxation documents. He stated to the District Court he could find me to serve me but put up a chronology which contained my address. When Bagshaw told the Judge Burman (sic) he was withdrawing his guilty pleas. Bolster outside the Court referred to me that a Leopard never changes his spots which convicted me. 3. Before Judge Puckeridge he led with the same accusations, re transcript. 4. When Judge Blackmore asked him what happened to the documents out of the Court file he just shrugged his shoulders. The Judge said he would take Bagshaw at face value . 5. Outside the Court Bolster indirectly abused me again. 6. In a fit of rage Bolster before the Judge Puckeridge he described me as a cunning, conniving and manipulating self litigant. This is an example of his inability to control himself, re transcript. 7. He refused to put Robyn McLean AFP into the witness box, clearly shows it is a cover up. 8. It is clear any submission to the Court that he is out of his depth. The DPP is only a Prosecutor. The case actually stems from the two private trustees and two government trustees who were struck off. The AFP were only investigation. It had to come from somewhere. 9. Bolster failed to turn up on the 15th December. That is contempt of Court. I asked the full Court not to take any submission from the DPP, Barrister, Bolster and I will spell it out on the day." 11 In oral submissions the applicant contended that Puckeridge DCJ had held that the proceedings were a miscarriage of justice. As the transcript of his judgment shows, what his Honour said was that if the trial went ahead when the applicant did not understand the legal significance of the application or non-application of the Criminal Code "there could be a miscarriage of justice." For that reason he adjourned the scheduled commencement of trial. 12 So far as the "leopard" issue is concerned, his Honour determined that the words, even if spoken as the applicant asserted, would not be a ground for removing Mr Bolster as counsel for the prosecution. In fairness to Mr Bolster it should be recorded that there was before the District Court an affidavit by Ms Aitken, solicitor, which included in reference to this: "On 23 May 2008 following the mention of the proceedings in Court 3.1, I had a conversation with Bagshaw and Paul Bolster of Counsel during which Mr Bolster said to Bagshaw words to the following effect, 'We will also be sending you a tendency notice'. Bagshaw said 'What's that?' Mr Bolster said 'It puts a person on notice that at the hearing we will seek to rely on a number of other facts to prove another related fact. All of the facts involve the same conduct or type of conduct. It is a bit like the old saying that a leopard never changes its spots . ' " 13 The reference to a previous hearing before this Court (McClellan CJ at CL, Simpson and Hislop JJ) advances nothing other than repeated unsubstantiated assertion by the applicant. 14 As can be seen other matters of complaint also refer to assertions of fact and, if they can be shown to be relevant, any dispute can be determined at trial. Challenges to factors articulated by the applicant do not give rise to relief pursuant to s 5F. No error in his Honour's refusal to disqualify the prosecutor has been shown. 15 So far as the applications in respect of bail are concerned, it has been held in this Court that such are not matters of judgment or order given in the proceedings within the meaning of the expression in s 5F: R v Nanai [2000] NSWCCA 204. The power vested thereby is not exercisable. 16 The foregoing observation should not be taken to imply that the applicant has established anything appropriate for a grant of leave. On any basis the application in respect of the rulings by Puckeridge DCJ should be dismissed. 17 As abovementioned the applicant moved in the District Court to withdraw his pleas of guilty to the four counts. It was heard by Syme A/DCJ. The grounds of appeal have been expressed by the applicant as follows: "Judge Syme erred 1. Placing me on time limit during cross examination. 2. Verballed me. 3. Stopping me when cross examination of criminality taking place. 4. 11.11.08 Refusing to accept psychology report when I was told to provide one on 6.11.08. 5. She had a set against self litigants." 18 The written submissions by the applicant were in these terms: "SUBMISSION ON BEHALF OF JUDGE SYM 1. She was a Magistrate and not a Judge when ruling on my case. She does not have the same power as a Judge. 2. She cannot place you on a time limit re transcript, this is manipulation on behalf of the Crown. 3. She verballed me when she lost control of the Court as a Magistrate. Why was she there? 4. She failed to let me cross-examine my own Barrister when she could see I was trying to expose my Barrister of aiding the DPP. 5. Clearly my Barrister was the instigator of my guilty pleas knowing the DPP was sitting on false documentation. 6. My Barrister will be placed in the witness box before the Federal Court. Re documentation attached. 7. The Magistrate erred in cross examination of the Barrister when she told the DPP prosecutor that I was assisting them. This is biased. Re transcript. 8. She did not have the power to refuse the Menzies report (Psychologist) or MRRC Psychologist report. This is an example of her incompetence on sitting on the Bench. 9. She had a set against self litigants. She was pugnacious . She turned the Court into disrepute . 10. She failed to endorse Bench warrant against Senator Heffner where the political stature where the money has gone. Read transcript. It is clear as a Magistrate she should not be in this position and take the Law true course. As a Senior Judge, Puckeridge had the clear view that it was a malicious prosecution. She was out of her depth in this case. This Magistrate is totally biased against self litigants. Her smirk and smile is as venomous as a rattle snake in the grass as she was clearly over the DPP like a rash. She was not neutral." 19 A qualified person may be appointed an acting judge of the District Court by the Governor in accordance with s 18 of the District Court Act 1973. Syme A/DCJ was qualified and the fact that she had previously been appointed as a magistrate did not disqualify her. Duly commissioned, she possessed the powers and authorities of a Judge of that Court and was deemed by the statute to be such: See s 18(3). 20 A hearing had proceeded before her Honour on 30 October 2008 and there was a resumed hearing on 11 November. On the latter date she gave reasons for dismissing the application to reverse the plea. Those reasons show that her Honour correctly focussed her attention upon the relevant issues. Inter alia, she stated: "…..there is no evidence that the applicant did not appreciate the nature of the charge to which the plea was entered. All of Mr Bagshaw's submissions to me today make it clear that he understands exactly the nature of the charge to which the plea was entered; he has addressed me at length in relation to the issue of bankruptcy, and he has addressed me at length in relation to whether other people knew he was bankrupt or not when certain contracts were entered into. Secondly, there is no evidence that the plea was not a free and voluntary confession. I have listened to the tape where the pleas were entered. I find as a question of fact, there being an absence of other evidence, that the pleas were free and voluntary, and because of the comments he made after each plea I find that he specifically understood which charge he was pleading guilty to and which charge he was pleading not guilty to. Thirdly, whether the plea was not really attributable to a genuine consciousness of guilt; there is no evidence that the applicant has put before me to suggest that is the case. Fourthly, whether there was a 'mistake or other circumstance affecting the integrity of the pleas as an admission of guilt'; Mr Bagshaw refers to this issue in his affidavit, he refers to having documents, he refers to there being documents which he says he has. Those documents are not before me, he has chosen not to tender them. I do not know where they are and therefore count 4 cannot be satisfied. Point 5, where the plea was induced by a threat or other impropriety when the applicant would not otherwise have pleaded guilty; again Mr Bagshaw has in his submissions today suggested that these prosecutions are malicious. There is nothing in the evidence that he has put before me that suggests this is anything other than an assertion by him. Sixthly, that the plea of guilty must either be unequivocal and not made in circumstances suggesting that it was not a true admission of guilt. The circumstances of this case, Mr Bagshaw was represented by competent counsel. Counsel had time to speak to him beforehand, counsel addressed the court on several occasions before Mr Bagshaw was brought up from the custodial setting. There is no evidence to suggest that the plea was made in those circumstances. Finally, if the person who entered the plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt; there is no evidence to support that, and in fact the evidence again suggests the exact opposite. For all of those reasons whilst I have considered Mr Bagshaw's application carefully, I am of the view that he has not satisfied the onus which should be on the balance of probabilities to satisfy me that the plea of guilty should be withdrawn." 21 Complaint is made of the ruling by her Honour to limit the time during which the applicant was seeking to adduce evidence from his former counsel Mr Killlalea. Her Honour plainly was vested with power to give such a direction: Evidence Act 1995 ss 26 and 192. A reading of the transcript shows the persistent failure of the applicant to direct questions to relevant matters and no error in her Honour's exercise of power has been shown. The applicant, as he was entitled, informed her Honour that he was not prepared to waive privilege attaching to advice which Mr Killalea had given (transcript 30 October 2008 page 3). This obviously reduced to a very small compass any evidence that Mr Killalea could relevantly give. 22 The applicant told her Honour that he had not seen Dr Menzies until a consultation on the Tuesday prior to the hearing on 30 October. He did not on that occasion produce a report but an adjournment was granted and it was produced at the resumed hearing on 11 November. It is significant that her Honour had given directions concerning service of any report. A copy of it is in the documents placed before this Court although her Honour rejected the tender. As the reasons for rejection are based, in part, upon the content, or absence of content, of the rejected document it can be examined. It can be observed that the report is dated 29 October 2008, the day before the applicant obtained an adjournment. The document is addressed "To Whom It May Concern". 23 As stated, her Honour rejected the tender. The document is extremely short and its content will demonstrate why her Honour correctly applied the authority of Makita (Australia) Pty Limited v Sprowles (2000) 52 NSWLR 705. The entire content is: " TO WHOM IT MAY CONCERN Mr Leith Bagshaw and I met on 28.10.08. He recounted a long and complex series of events over the previous ten years. At interview we most specifically talked about his mental state while incarcerated for 4 weeks from mid March 2008. Mr Bagshaw's 34 years old son died by suicide 6 weeks earlier. It is highly probable that Mr Bagshaw was not in a clear state of mind when he pleaded Guilty to Charges on March 24, 2008. -signed- J.D. MENZIES October 29, 2008 . " 24 No case for intervention by this Court in respect of the judgment or orders of Syme A/DCJ has been shown. 25 The third challenge arises out of a listing hearing which was conducted before the Chief Judge, Blanch J. 26 The grounds of appeal are stated by the applicant as follows: "On the 15h Dec the Chief Judge Blanch erred in a error of judgment. 1. He refused to hear a partly heard notice of motion back before Judge Puckeridge to have the case struck out. 2. He is clear he is biased against me. 1A. This is the third time he has refused a self litigant justice. 2A. In 2004 he stated Bagshaw I will jail you one way or the other. 3A. He stated in 2008 a notice of motion that the false documentation was a load of rubbish. 4A. He called me a liar and then had to retract it concerning pro bono. 5A. I asked him to release $20,000 funds, he only released half, and again tried to push it to trial. A Senior Judge Puckeridge stated it was a malicious prosecution and a miscarriage of justice. Puckeridge stated the criminal code fits in this case as the code states recklessness or other avenues of terminology Bagshaw carried out what the trustee told him to do and completed the job. So Bagshaw is either a employee or agent for the trustee, both trustees have been struck off and PKF has removed trustee Phil Jefferson has been dismissed for fraud. Judge Blanch ignored that the DPP failed to attend Court and Bolster, the barrister for the DPP failed to attend. I ask the Full Court to release the other $10,000 and strike to case out and reward costs and damages." 27 The written submissions in support of this application are: " FURTHER SUBMISSIONS AGAINST JUDGE BLANCH 1. He refused to let the full $20,000 bail money be released because the DPP and Barrister failed to turn up. He is in contempt of Court. 2. He refused to allow the amended notice of motion to go back to Judge Puckeridge because he knew Puckeridge would strike it out. It fits into the Criminal Code as it is all prior 2000 and Puckeridge states it is a malicious prosecution and a miscarriage of justice. 3. As the Criminal Code states that it is recklessness Bagshaw carried out what two trustees instructed Bagshaw to do to complete all contracts. Bagshaw is either an agent or an employee. 4. It is now clear that the Chief Judge is pushing two areas because he worked for the DPP and is now working as a senior Chief Judge which now becomes a Conflict of Interest . Further more he cannot set a trial date as other side, DPP, is not there. This is an example as all the Judges (six) made amendments that we will never get a fair trial. Read previous Full Court Submissions of all the Judges comments." 28 As previously noted an application to vary bail is not a subject for relief from this Court pursuant to s5F. 29 There is no error manifest in his Honour's refusal to vacate the trial hearing date. 30 As can be seen particularly in the foregoing recitations of grounds and submissions filed by the applicant, he has cast numerous aspersions upon various judges as well as upon counsel conducting the prosecution. I have hesitated about incorporating reproductions in these reasons of what the applicant had written but in full context the absence of merit emerges with unmistakable clarity and I have done so for that reason. 31 That I have not paused to deal with all matters in detail should not be taken as a tacit acceptance of an entitlement of the applicant to engage in calumny but the irrelevance of what has been stated in much of the material presented is self evident to any exercise of jurisdiction by this Court pursuant to s 5F. There is nothing in the material to justify the intemperate language which the applicant has chosen to use. 32 These three applications are entirely unmeritorious and I propose that leave to appeal in each case should be refused. 33 HALL J: I agree with Grove J. 34 LATHAM J: I agree with Grove J.

Bagshaw v R

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