Conklin v R

Court of Criminal Appeal (NSW)|2017-07-10|Before: Simpson JA, Harrison J, Schmidt J

The applicant's evidence in the sentencing proceedings

I will confine references to the applicant's evidence in the sentencing proceedings to so much of the evidence as is relevant to the issues raised in the application for leave to appeal against conviction.
In cross-examination by the Crown prosecutor, the applicant was asked if he had read the (41 page) Statement of Facts. He replied that he did not know: "maybe I have". It was then put to him that his counsel was acknowledging that he had, to which he replied: "Then yes if I have, yes, I've, yeah, they, yeah."
I then set out the following exchange in cross-examination: "Q. Do you agree with this proposition that you knew at the time that you were engaging in this conduct, you knew it was dishonest? A. I know that I hadn't paid all of the tax that was due. Q. Well, let's break it down. You knew that you had set up an overseas structure to dishonestly disguise this income. You knew that, didn't you? A. Overseas structures had been set up. The arrangement was set up overseas. All of it was set up in - in Hong Kong and - and Switzerland originally by the - by the lawyers and, yes, I was aware that it was set up over there. Q. The balance of my question, please, Mr Conklin. You knew at the time that that structure was to dishonestly disguise your income. Do you agree with that? A. I knew or I know at this time that the tax was not paid. Q. I haven't asked you that question, Mr Conklin. Please, you knew that this structure was designed and set up so that you could dishonestly disguise your income. Do you agree with that or not? A. I don't - I don't understand. They'd set it up and I said okay. Q. Do you agree that the purpose of the structure set up overseas was to dishonestly disguise your income? A. All of the money that was for the whisky arrangement or the arrangement went over to - to Hong Kong and Europe and they set that up and yes, I was aware of the - the structure. Q. I'll try again, Mr Conklin. Do you agree that the structure was to dishonestly disguise your income? The Winslow Trust, Sheldrake Overseas, debit cards that you weren't allowed to sign for and had no link to your address, Vanuatu, et cetera. The structure was set up to dishonestly disguise your income. Do you agree with that or not? A. I agree that yes, there were things that were set up to - to run the arrangement, yes. Q. That's not my question. Do you agree that the arrangements and structure were set up so that you could dishonestly disguise your income? It's not a complicated question. Do you agree with that or not? A. I - I said that they, yes, I agree that they turned around and they set the arrangement up in the - in the - in the - in the structure. Q. To dishonestly disguise your income. Do you agree or not? A. I don't - I don't - I don't remember that - it was set up to run the structure. It was set up ... (not transcribable) ... the structure. Q. Sorry, I missed that because of coughing. Set up? A. I said it was - it was set up to run the structure, yes. It was set up to run the-- Q. I'm asking you the purpose that you knew for this structure. The purpose was so that you could dishonestly disguise your income. That was the purpose, wasn't it? A. But the arrangement was legitimate but yes, I didn't pay tax on - on some of the - the income or some of the benefits that I received, yes--"

The application for leave to appeal against conviction

The applicant contends that his pleas of guilty were entered, not out of a recognition of his guilt of the elements of the offences, but under some pressure and inadequate advice from his legal representatives. He claims that he understood that his pleas of guilty signified recognition, and admission, that he had failed to pay income tax when it became due, but did not (and were not intended to) signify recognition, or admission, of dishonesty.
Put shortly, the applicant claims that the payments he received (which, on the prosecution case, represented commission) were in fact loans and that he was not entitled to payment of commission until the whisky in Scotland had matured and was sold, and the investors in the "whisky schemes" were entitled to receive the proceeds. Although it was never made explicit, it appears to be his case that, at some unspecified time, the whisky matured, and his entitlement to commission (as distinct from an advance or loan against commission) crystallised and he became liable to income tax, by which time he was unable to pay.
He claims that he had been in possession of documented loan agreements to the effect that the payments were loans, but that they were included in material seized on the execution of search warrants. He claims that he never understood that his pleas of guilty involved admissions of dishonesty.
He claims also that a barrister specialising in taxation matters (Mr David Raphael) had, on his behalf, lodged an objection to the income tax assessment.
He claims further that he was advised by Mr Gleeson that the CDPP would not oppose a sentence that incorporated a reduction of 25 per cent by reason of a plea of guilty, and a term of imprisonment of one year.
The CDPP disputes the applicant's claim of ignorance that each charge to which he pleaded guilty included an element of dishonesty, disputes his assertion that he was advised that the Crown would not oppose a one year term of imprisonment, and would not oppose a reduction in sentence of 25 per cent.
The applicant does not dispute that he had received payments through the Winslow Trust, in amounts that equated to the value of the commissions payable on the introductions he had made to the schemes. In a nutshell, his case is that he believed that his entitlement to commissions depended upon the successful outcome of the whisky manufacturing enterprise, something that would not be known until the whisky matured, some 8-10 years after the introductions, and that Chambers Finance was prepared to make loans to introducing agents such as himself, in order to enable them to access all or part of the commissions to which they would eventually become entitled. If his receipts of payments were properly characterised as loans, rather than income, income tax would not be payable in the years he received the payments. When he was liable to pay income tax (at a time he did not specify) he was unable to do so. His failure to pay income tax was not, therefore, dishonest.
He claims that, because he became concerned about the integrity of Strachans and Chambers, he caused the money to be taken out of their control. He transferred the Winslow Trust funds to Vanuatu. Thereafter, he fell into financial difficulties and was unable to meet his tax liabilities.

The evidence

The applicant swore an affidavit in support of the application. He gave oral evidence and was cross-examined. I will deal in due course with the oral evidence he gave. The applicant's son Todd, and daughter Kaila, also swore affidavits and gave oral evidence.
Affidavit and oral evidence was given on behalf of the CDPP by Mr Gleeson and Ms Evans. An affidavit was sworn by Mr Croke but he was not required for cross-examination.
In his affidavit the applicant gave an account of his meetings with his legal representatives. The applicant's evidence in this respect falls into two parts: his account of what occurred prior to and on 8 February when he entered the pleas of guilty, and that which occurred after that date, and before the sentencing hearing of 20 May. Only the first part is relevant to his challenge to the conviction.
The applicant said that, in September 2014, after his case had been assigned to Mr Croke, he met Mr Croke and then was introduced to Ms Evans, who was to have carriage of the case. By the time he met Mr Croke and Ms Evans, he had had delivered to him, by the ACC, the brief "in around 10 boxes". (There is no indication of the size or content of the boxes.) At that time, the applicant had not received the Crown Case Statement and, he said, did not understand the allegations against him. He said he gave instructions to the following effect: "I am not, and never was, an accountant, having no formal qualifications, training or knowledge of tax, structuring or related legal or financial matters, nor did I give advice of that nature." "Legal and financial advice - based on there being loans and the structure of the associated trusts and companies - was that neither I personally nor my company at the time AEPA bore a tax liability for funds to be received, until the ultimate sale of the scotch whiskey." "The reasons for the movement of funds ultimately to New Zealand, was because of my mother and stepfather's interests overseas, and to follow their wishes. Further I had growing concern that Strachans and/or Chambers Finance were going to misappropriate part or all of the funds. There was no intention of deception on my part."
He said that, except as subsequently detailed, the contact with his lawyers was "substantially administrative". A barrister, Greg Jones, was briefed but had to withdraw when a date for trial which was unsuitable for him was fixed. A second barrister, Michael Gleeson, was briefed. According to the applicant, this happened in about December 2015. He said that he had an initial meeting with Mr Gleeson in late 2015 or early 2016, and another a couple of weeks later. He said that Mr Gleeson told him: "I can find nothing of value in the ACC's transcripts and can find very little evidence in the Crown's brief to defend you with." (Mr Gleeson's version of this conversation was that he (Mr Gleeson) said: "I have read the 51 lever arch folders and can find nothing to support your defence that the commissions were not taxable.")
The applicant said in his affidavit: "22. At no time in any conferences with Mr Croke, Sophie or Mr Gleeson, did we canvas the allegations or evidence in any detail. We did not go through the Crown Case Statement and what my response to it or any part of it was. We did not go through any witness statements for the Crown and my response to it. The folders from the approximately 10 boxes were in Mr Gleeson's chambers. He pointed to them but did not open any of them in my presence."
The applicant gave a lengthy account of his dealings with Mr Jones, Mr Croke, Ms Evans and Mr Gleeson. He claims to have instructed these legal representatives that his receipt of monies from Sheldrake was pursuant to the loan agreement, and therefore not income, and therefore not subject to income tax. He claims that Mr Gleeson and Ms Evans discussed with him the possibility of negotiating a plea arrangement with the CDPP, by which the three charges he then faced would be collapsed into a single count. He also claims to have been advised that the CDPP would not oppose the imposition of a term of imprisonment limited to one year (by way of non-parole period) nor an allowance of a reduction of 25 per cent in sentence in recognition of the plea of guilty. He further maintains that his agreement to enter pleas of guilty was expressed to be "conditional". By this he appears to mean that he intended that the sentencing judge would be told that he had not intended to defraud the Commonwealth, or to engage in a deception.
The applicant then gave an account of the discussions he had with Mr Gleeson and Ms Evans concerning entering a plea of guilty on 8 February, the day fixed for trial. He said that Mr Gleeson told him: "I have no evidence or grounds to defend you and I believe it is in your interests to plead guilty and we cut a deal with the Crown and get a discount." He said that he felt "overwhelmingly pressured".
He then said that he gave Mr Gleeson the following instructions: "I didn't pay the tax. That's number one. I will plead guilty to the defrauding the Commonwealth because I didn't end up paying the tax. It was in dispute, and I just didn't have the money when it was finally due. But number two is, I won't plead guilty to the charge of receiving benefit by deception. I did not set up trusts and move funds to deceive the ATO. Further, what benefit did I receive? I have lived and worked overseas. What is wrong with me investing overseas? Couldn't I plead guilty to just defrauding the Commonwealth? What would be the consequences if I plead guilty? What are we talking about penalty wise?"
The applicant said that Mr Gleeson then had a brief discussion with the Crown prosecutor and returned to tell him (the applicant) that the CDPP agreed "to drop charges, or roll them up", and would not oppose a 25 per cent discount on sentence, and would not oppose a custodial sentence of a term of one year.
He said that he then signed a document prepared by Ms Evans, in which he agreed to plead guilty, and that he entered the courtroom and entered pleas of guilty.
The applicant said, in his affidavit: "43. On 8 February 2016, when I signed the document stating my preparedness to enter a plea of guilty, and when I orally entered a plea of guilty, to the 2 charges, I did not understand that, by pleading guilty, I was admitting to any particular 'elements' of an offence. My lawyers did not explain to me what 'elements' were. I now know that 'elements' are the essential ingredients to an offence. 44. I believed as follows. (a) The entitlement to commission income, arising from introducing persons interested in whiskey ventures, depended on the outcome of the whiskey ventures and did not crystallise until after the whiskey was sold, in around 8 to 12 years. (b) It followed that, at least at the outset, the proper time to account for commission income in a tax return was after the whiskey was sold, in around 8 to 12 years. (c) Chambers Finance was prepared to make loans to introducing agents, so they could access part or all of the money before then. (d) I was concerned that money available for payment by Chambers Finance in 8 to 12 years' time was at risk of being dissipated or stolen. (e) After mid-2002, I caused money to be taken out of control of Chambers Finance/Strachans for this purpose. (f) Financial difficulties arose for me thereafter, which meant that I had no money to pay tax on some proposed commission income. 45. I thought I was going to be sentenced for never paying the tax, whenever it may have been due, arising from my work in introducing persons interested in whiskey ventures. 46. I thought that the following could be submitted on my behalf on sentence. (a) It was not my intention to not pay tax. That is: (i) during the income tax years ending 30 June 2000, 30 June 2001 and 30 June 2002, I believed that my company AEPA's entitlement to commission in respect of work I had done in introducing persons interested in whiskey ventures, crystallised when the venture whiskey was sold, around 8 to 12 years later; (ii) monies made available to me or entities associated with me in the meantime, in anticipation of AEPA's entitlement, were loans, but the making of those loans did not bring forward the date when AEPA's right to commissions crystallised; (iii) accordingly, I did not have income which could, or should, be disclosed in my income tax returns for those periods; and (iv) during the income tax years ending 30 June 2000, 30 June 2001 and 30 June 2002, I intended to pay tax when it later became due. (b) I acted on what I believed to be advice to that effect regarding the effectiveness of the initial structure and my belief that respectable accounting firms (who had similarly done work introducing persons interested in whiskey ventures and who, accordingly, I understood, had an entitlement to commissions in the future) were doing similarly. I believed they understood tax law. I did not believe them to be wrong. (c) I did establish trusts overseas for investment purposes, but not to deceive the Australian Tax Office or to conceal transactions. I am an American, I have family overseas, we travel overseas and we invest overseas. 47. I did not know that the charges to which I was pleading guilty involved, as an essential element, a dishonest failure to disclose commission income in my income tax returns for income years 2000-2002. 48. I did not believe that I was obliged to disclose income in those periods as I have been sentenced for."

The CDPP's response

The CDPP relied on the affidavit evidence of Mr Gleeson and Ms Evans. Each was cross-examined. They gave similar accounts of their involvement in the case. The following is drawn from their evidence.
Mr Gleeson received the brief in December 2015; the brief of evidence, consisting of 51 lever arch folders of documents, was delivered to him on or about 16 December. He had an initial conference with the applicant with Ms Evans present in early January 2016, at which the applicant asked about his prospects of success. Mr Gleeson deferred answering that until he had had a proper opportunity to familiarise himself with the material in the brief.
Mr Gleeson and Ms Evans then conferred with the applicant on 20 January 2016. Ms Evans took handwritten notes of this conference (and of subsequent conferences). The notes are in evidence. As might be expected of handwritten (not shorthand) notes taken in conferences, Ms Evans' notes are at times incomplete, and sometimes cryptic. Both she and Mr Gleeson were able, using the notes, to explain the context of the conversations to which they relate. The applicant was also closely questioned about the conferences the notes record.
Mr Gleeson explained the charges to the applicant, what the CDPP had to prove, and discussed the weight of the evidence contained in the folders. He told the applicant that the issue was whether he had a bona fide defence. The applicant instructed him that his defence was that he had received, and relied upon, professional advice that the commissions were not taxable income that he was obliged to declare in Australia. The issue of loans was raised by the applicant.
Mr Gleeson took the applicant (he said at great length) through the statement of one of the prosecution witnesses, a person who had been a participant in the whisky schemes. He advised the applicant that there was nothing in that statement, or in the 51 folders, to support the proposition that the payments received by the applicant were loans.
Mr Gleeson referred to a particular extract from the witness statement which dealt with a document involved in the schemes, headed "Loan Commission Fees". The witness (Mr de Figueiredo) said: "This document discusses the payment of commissions to agents, such as Conklin, who procure investors who ultimately enter into loan agreements with Chambers Finance. The document discusses that the liability to pay the commission occurs only when the loans have been repaid. It comments further - 'GM Hong Kong may be agreeable to permit some of the principal that is owing to it under the bills, to be used to pay-out the commissions in order to avoid the Commission Agents having to wait until the whole of the interest on the relevant loans is collected.'."
The applicant had made a notation on this page, in the following terms: "So called 'commissions' were not commissions but loans to 'agents' (Conklin) * and it was in my case a secured loan! Grant McKenzie and Chambers had a lien and (indecipherable) on my hogs head."
It is plain that, from the start, Mr Gleeson was aware of, but was sceptical about, the applicant's claim that the payments he received were loans (or that he believed that to be so) and advised the applicant accordingly. He invited the applicant to nominate potential witnesses to support his claim that he had been given advice of the kind he asserted, but the applicant was unable to do so.
Ms Evans' notes of this conference record discussions about the applicant's personal circumstances and confirm that there was discussion about potential witnesses.
Between 29 January 2016 and 1 February Mr Gleeson received from the CDPP a "Crown Case Statement", and a much reduced brief of evidence. On a date which Mr Gleeson could not pinpoint, but well before 8 February, he went through the Crown Case Statement with the applicant. The Crown Case Statement ran to 294 paragraphs over 53 pages. It was footnoted with references to witness statements in the brief of evidence.
1 February 2016 was the date initially fixed for the trial to commence, although it was accepted by the parties that it would not commence on that day. The applicant was present at court. There are no notes recording any conference with the applicant, but it is plain that there were some discussions.
The next conference was on 3 February. Ms Evans' notes record that the applicant said "anything I received was a loan"; and, later, that he said that he relied on professional advice. There was discussion, again, of potential witnesses, and Mr Gleeson advised the applicant that the CDPP would "have to prove intention". There was some discussion about the possibility of the applicant entering a plea of guilty. Mr Gleeson said that, the following day, he would give the applicant an assessment of the case, but said that the CDPP had a "strong paper case". There was also some discussion about the quantum of the tax the subject of the charges. Mr Gleeson suggested the need to engage a forensic accountant, but the applicant was resistant to this suggestion.
A further conference took place on 5 February. Ms Evans' notes indicate that, at an early stage in the conference, the question of whether the payments were loans was discussed, and that Mr Gleeson questioned the "plausibility" of the applicant's position. The applicant said that he had specifically asked Strachans, Gadens, and a barrister practising in tax law whether the payments were taxable; Mr Gleeson asked where the advices were, to which the applicant replied (as recorded by Ms Evans) "won't find any paper advice". Ms Evans' notes record the following, attributed to Mr Gleeson: "My advice is this - not a hopeless case - limited amount of power over jury - for us to get an acquittal we have to persuade them that you weren't being dishonest We have to accept that money was owed." The notes continue, attributing the following to Mr Gleeson: "Why didn't you just simply get the loan put in NAB account. This concept of being a loan --> is shit."
He advised the applicant that he could fight the case, but that the prospects of acquittal were "slim", and advised the applicant to instruct them to "get a deal".
The final conference before the date then fixed for trial, 8 February, took place on 5 February, by telephone. Mr Gleeson had some discussions with counsel representing the CDPP, and then conferred with the applicant. He advised the applicant that there was very little material to support his claim that the payments were loans. There was then discussion about the prospects of a plea of guilty, and the likely outcome of a sentence hearing.
Ms Evans' notes then record that the applicant gave instructions that there could have been some errors, and that he would be willing to plead guilty. Mr Gleeson advised him that he would be given credit (presumably on sentence) if he were able to advise the court of a plea, and the reasons for such a reduction. The notes record that the applicant said that he comprehended that, his feelings were to say yes, and that he was "amiable to a plea". Mr Gleeson then said that he did not want the applicant feeling rushed and made some reference to the possibility of him changing his mind. He then gave some advice about the likely sentence should a plea be entered.
The applicant again met Mr Gleeson and Ms Evans on the morning of 8 February, at court. A fresh indictment, reflecting the negotiations between Mr Gleeson and the CDPP, was provided, reducing the charges to the two to which the applicant pleaded guilty. Mr Gleeson explained the charges to the applicant, advised him that the CDPP's acceptance of the proposed plea depended upon the applicant's agreement to the conduct alleged in the Crown Case Statement, and accepting the quantum of the tax shortfall alleged. He advised the applicant that, if he entered pleas of guilty, a sentence of imprisonment was inevitable. He gave the applicant an opportunity to consider his position and make his own decision. The applicant took some time away, returned, and instructed Mr Gleeson that he wished to plead guilty.
Ms Evans made a note of the instructions, in the following terms: "I guess the only thing I can do is say a plea … with " (In the notes, this sentence tails off, unconcluded. The applicant claimed that what he said was that he would enter a plea "with conditions", the conditions being that his account of the circumstances in which he received the payments be relayed to the court.)
Ms Evans' note goes on to record Mr Gleeson saying: "● this is damage limitation for you ● strong case"
Ms Evans prepared two sets of written instructions, one for a plea of guilty, and one for a plea of not guilty. The applicant signed that which instructed his legal advisors that he was prepared to enter a plea of guilty.
All entered the courtroom, the applicant was arraigned on the indictment, and entered pleas of guilty to both counts.
The applicant did not file a further affidavit contesting any aspect of the evidence of Mr Gleeson and Ms Evans.
In cross-examination the applicant was taken through Ms Evans' notes of the various conferences, and the account given by Mr Gleeson of the conferences. He disputed some of what was asserted either by Mr Gleeson or Ms Evans (including what was in Ms Evans' contemporaneous notes). For example, he denied that, in the conference of 3 February, he had been taken through the Crown evidence. He said: "We did not go through any specific evidence against me."
He did recall that he had told Mr Gleeson that the payments were received by him by way of loans. That is in accordance with the evidence of Mr Gleeson, and Ms Evans' notes.
There were internal contradictions in some of the applicant's oral evidence. For example, the transcript records the following: "Q. Do you agree that in these notes a number of times you are told that the key issue in the trial is whether or not you were dishonest about your declarations in your tax returns? A. Sorry, repeat that one more time? Q. Do you agree that an issue that was raised a number of times in conferences with your lawyers was about whether or not you were dishonest? A. And I told them no, I was not being dishonest. Q. Do you agree with that? A. (No verbal reply.) Q. You were told that that was an issue in the trial? A. I don't remember ever hearing them say those words specifically, 'dishonest'. Q. You sure about that? A. I'm positive about that. [The internal contradiction in this passage is obvious.] Q. What about the word 'fraud', did they tell you that the allegation against you was that your tax returns were fraudulent? A. I knew that I was charged for defrauding the Commonwealth. Q. What do you understand that to mean, 'defrauding'? … Q. Prior to entering your plea on 8 February what did you understand the word 'defrauding' meant? A. Say that again? Q. Prior to entering your plea on 8 February what did you understand the word 'defrauding' meant? A. I thought it meant you didn't pay. Q. Does it mean anything else? A. I didn't pay my tax that was due. Q. Did the word 'defrauding' as at 8 February when you pleaded guilty mean anything else to you? A. No. Q. You didn't understand what that word meant, is that what you are saying? A. I was under the impression that 'defrauding' meant that you did not pay your taxes that were due. Q. Let's try this. What about the word 'dishonest', what did you understand the word 'dishonest' meant as at 8 February when you entered the plea of guilty? A. I didn't think much about 'dishonest' at - prior to that day. Q. Well, what did you understand the word meant? A. We didn't discuss 'dishonest'. Q. What did you understand the word meant? A. What did I understand the word meant? Doing something incorrectly. Q. How about lacking in honesty? A. What's that? Q. Lacking in honesty? A. I didn't - I hadn't thought about that. Q. What about the word 'deception', what did you understand the word 'deception' meant when you entered your guilty plea on 8 February? A. I had - I never believed that I had done anything deceptive. Q. Just concentrate on the question. What did you understand the word meant? A. 'Deception', doing something that's incorrect."
Later, the applicant was asked: "Q. … You understood, didn't you, that the deception was a deception that occurred on your income tax returns by failing to declare income? You understood that, didn't you? A. No. I understood that I did not pay tax when it was due in 2005, 2008, as was in the documentation."
Similar answers were given by the applicant at a later stage. The applicant was being asked about the charges on the indictment. The following exchange took place: "Q. … There is not a word on that page that you do not understand? A. Well, yes, I disagreed with deception and dishonesty. Q. You disagreed with it? A. Yes. Q. I will try a third time. There's not a word on that page you do not understand? A. I didn't understand their interpretation of deception. Q. You understand the words, Mr Conklin, don't you? A. I know that it's not doing what was expected. Q. You understood the words on 8 February when you pleaded guilty to each of those counts? A. I did understand that I was pleading guilty, but not for the same reasons."
The applicant was asked about what he asserted was a loan. He could not answer a question about the interest rate, but said that he thought he recalled the word "capitalised" or something to that effect. He then claimed that the loan was "an offset loan".
He was then asked about the advice given by Mr Gleeson about pleading guilty. He did recall Mr Gleeson telling him, a number of times, that it was up to him as to whether or not he wished to fight the case, that he could defend it, and that the decision was his. He also agreed that Mr Gleeson made it clear that he considered that the prospects of success were slim, and that he could benefit by a reduction in sentence by pleading guilty.
When asked about the discussion of pleading guilty, the applicant said: "They discussed the different aspects. We didn't get much into whether we should plead guilty or not guilty part. It was more the different aspects of the case itself."

The grounds of the application for leave to appeal against conviction

Only one ground of appeal against conviction was identified. It was framed as follows: "Ground 1: The plea was entered in circumstances amounting to a miscarriage of justice under section 6 of the Criminal Appeal Act."
The "miscarriage of justice" was said to be that the applicant pleaded guilty in circumstances where he was given inadequate legal advice, that he did not understand the complexity of the charges to which he was pleading guilty, and that his instructions had been to enter pleas "with conditions", and that he had never intended to admit to dishonesty, accordingly, the pleas did not reflect a genuine consciousness of his guilt of the offences on the indictment.

(i) legal principles

A number of cases in this Court have explored the circumstances in which, notwithstanding that a plea of guilty has been entered, an appeal against conviction will be allowed.
In R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97, Wood CJ at CL, with whom Giles JA and I agreed, referred to a number of previous decisions, and said: "18 In Kouroumalos [2000] NSWCCA 453 I also had occasion to consider some of the circumstances in which this court will go behind a plea of guilty and allow it either to be withdrawn in appropriate circumstances, or to entertain an appeal against conviction where it is too late to withdraw it. Among those circumstances which were identified were those of an accused who is persuaded to enter a plea by reason of the imprudent and inappropriate advice tended [sic] by his legal representatives. … 20 The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations: a) whether the advice given to the appellant was or was not imprudent and inappropriate; b) whether his plea was or was not attributable to a consciousness of guilt; and c) whether the material before this court shows that there is or is not a real question about his guilt."
In the same year, in R v KCH (2001) 124 A Crim R 233; [2001] NSWCCA 273, Ipp AJA (with whom Sperling J agreed) said (in the context of a case in which it was alleged that improper pressure had been applied to the appellant to enter a plea of guilty): "31 The starting point in the inquiry is to acknowledge the circumspection or restraint with which an appellate court is required to approach an appeal grounded on the proposition that a plea of guilty which led to the conviction should be withdrawn. As Kirby P observed in Liberti (1991) 55 A Crim R 120 at 122: 'This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence … 32 An appellant will nevertheless be permitted to withdraw a plea of guilty where a miscarriage of justice would otherwise result. There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances. 33 A valid plea of guilty is one that is entered in the exercise of a free choice: Meissner v The Queen (1995) 184 CLR 132 at 141 … The plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501 at 511. 34 There have been several expressions of the requirements which have to be met before a court will allow a guilty plea brought about by imprudent and inappropriate advice given by the convicted person's legal representatives to be withdrawn." Ipp AJA went on to quote the passage from Wilkes set out above.
In Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 Johnson J, with whom Young JA and Latham J agreed, said: "32 This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea … 33 The onus lies upon the Appellant to demonstrate that leave should be granted … The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea … An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection … 34 The plea of guilty itself is a cogent admission of the ingredients of the offence … 35 A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it …" (internal citations omitted)
Finally, in Loury v R [2010] NSWCCA 158, Whealy J, with whom Hodgson JA and Kirby J agreed, said: "97 The principles of law relevant to this appeal are not in dispute and were not contested by counsel. The Court has power to hear an appeal notwithstanding that the appellant pleaded guilty before the sentencing court. It will allow the appeal where a miscarriage of justice may have occurred (R v Chiron [1980] 1 NSWLR 218). 98 In determining whether a miscarriage of justice has occurred, Giles JA (with whom Hislop J and Rothman J concurred) examined the circumstances where a plea has been entered in R v Rae (No 2) (2005) 157 A Crim R 182. The ultimate question was not, his Honour stated, the guilt or innocence of the accused person, but rather the integrity of the plea itself (at 188). As Giles JA notes in the later judgment of Sabapathy v The Queen [2008] NSWCCA 82 at [14], there will be no miscarriage of justice where the court acts upon a plea of guilty 'entered in the exercise of a free choice in what the accused believes to be his interests at the time' and 'where there is a genuine consciousness of guilt'. Similarly, Hulme J stated in Woods v The Queen (2008) 184 A Crim R 108 at 116, not only must it be shown that the person entering the plea did not entertain a 'genuine consciousness of guilt' but also that there must be 'some factor demonstrated going to the integrity of the plea'. 99 What also emerges from the authorities is that a plea of guilty may be entered for reasons other than a belief in one's own guilt. As noted by Dawson J in Meissner v The Queen (1995) 184 CLR 132, the accused person's exercise of free choice may 'extend beyond that person's belief in his guilt' and includes situations such as the avoidance of worry or inconvenience, the protection of one's family and even 'the hope of obtaining a more lenient sentence than [the accused] would if convicted after a plea of not guilty' (at 157). However, as Howie J made clear in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [33], there will be no miscarriage of justice in situations where a plea of guilty has been entered for the purpose of gaining some perceived advantage, despite maintaining one's innocence, so long as the plea was entered in the exercise of a person's free choice or in his or her own interests."

(ii) the submissions

The applicant essentially relied on two of the propositions that emerged from these authorities: first, that he was given imprudent and inappropriate legal advice; second, and, effectively as a consequence of the first, that he did not understand the nature of the charges to which he entered his pleas. Specifically, he contended that he did not understand that dishonesty was an element of each count.
In oral submissions counsel sought to gain comfort from the decision of the High Court in Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7.

(iii) consideration

I see nothing in Peters that assists the applicant. There was nothing complicated about the question of dishonesty as it affected either count. The CDPP's case was that, knowing that he had received commission income from the payments made to him, the applicant dishonestly failed to declare that income. That the non-disclosure was dishonest could, on the CDPP's case, be established by reference to the manner in which the payments were concealed, through trusts and other means, and were eventually received by the applicant through two debit cards in false names. That is significant evidence supportive of dishonesty in the ordinary sense. There was no need for any elaborate explanation of dishonesty by reference to decided cases.
The applicant's evidence in the sentencing proceedings calls for some examination. In the passages extracted above, he steadfastly refused to acknowledge any element of dishonesty in his conduct, including when it was repeatedly put to him directly. The view of the sentencing judge, that he was evasive, is, as I have said above, amply justified. However, in the light of the position the applicant now takes, it is fair to consider whether an alternative view is available. It may be said that the applicant's answers were consistent with his present position that, without dishonesty, he failed to pay tax. That, I have concluded, is not reasonably open. The applicant was given every opportunity to explain his position. He repeatedly obfuscated. It would have been a simple matter to have answered the questions by saying that he believed that the payments were loans, that he did not intend dishonestly to evade his taxation obligations, and that his pleas were based on recognition of a non-dishonest failure (through inability) to declare the income and pay tax when it fell due. He did not avail himself of that opportunity, given to him on numerous occasions. Had he done so, the sentencing judge would have had to raise with counsel, and consider, whether the pleas should be accepted.
The applicant's evidence in this Court was no more persuasive. I have already commented on one internal contradiction, when he said that he told his legal advisers that his conduct was not dishonest, and immediately followed that by denying that the word "dishonesty" had ever been used.
His attempt to deny any understanding of the words "defraud" and "deception", and to say that they simply meant "doing something incorrectly" bordered on farcical.
In considering the applicant's evidence, both at first instance and in this Court, I have not overlooked other evidence given in the sentencing proceedings, that he suffers from Parkinson's disease and that, in 2004, he was diagnosed as suffering from early dementia. In a 2016 report the doctor who diagnosed dementia thought there had been no major deterioration. I have made due allowance for these conditions in my assessment of the applicant's evidence.
I am satisfied that his pleas of guilty were entered out of due recognition of the dishonesty of his conduct, and also of the inevitable outcome of a trial.
The consequence is that, in my opinion, the application for leave to appeal against conviction must be dismissed.

The application for leave to appeal against sentence

Between 8 February, when the pleas were entered, and June, when the applicant was sentenced, he had several further meetings with Mr Gleeson, but in the absence of Ms Evans. On 13 May Mr Gleeson was provided with a draft statement of facts, and on 19 May with an updated draft statement of facts. On 26 May he was provided with the short form statement of facts requested by the sentencing judge.
Two grounds of appeal against sentence were proposed, they were: "Ground 2: The sentence miscarried because 'agreed facts' documents were tendered on sentence, content of which had not been knowingly agreed to by the applicant, and the failure of the applicant's lawyers to obtain instructions as to the factual basis of the guilty pleas. Ground 3: The sentence miscarried because a basis upon which the applicant understood the pleas were entered was that the Crown would not oppose a 25% discount for a plea and the Crown would not oppose a custodial sentence of 1 year."
The applicant's case in respect of sentence depends upon events that post-date the entry of the pleas. He said that, for the purpose of the sentencing proceedings, he read through the Crown Case Statement and prepared a bundle of documents for use by his legal representatives, pointing out areas of disagreement with the content of the Crown Case Statement. He also prepared a 2½ page document which he entitled "Statement 12 May 2016" which he said he gave to Mr Gleeson. Mr Gleeson agreed that he had seen that document. It became Exhibit A in the present application. In that document, the applicant commented on some parts of the Crown Case Statement.
The applicant said that he did not see or review the 41 page statement of facts sent to Mr Gleeson on 13 May, and that he had not agreed to those facts. Mr Gleeson's evidence was to the contrary; he said that, although he could not recall precisely when, he took the applicant through the 41 page statement of facts.
The applicant said that he did receive a copy of the short form facts document, provided to the court at the request of the sentencing judge. He said that he prepared a commentary on that document which he provided to Mr Gleeson, but that Mr Gleeson told him it that it was "too late".
Mr Gleeson said that he also took the applicant through the short form statement of facts. He could not recall (but did not deny) receiving the applicant's commentary, which became Exhibit B in the proceedings.
As I understand it, the point the applicant seeks to make with these documents is that he challenged certain aspects of the facts alleged against him, but that his challenges were unheeded, and a set of facts to which he had not agreed went forward to the sentencing judge.
I have carefully studied both documents. It appears to me that the contents of the first, Exhibit A, fall into three categories: assertions by the applicant that maintain that the payments he received were loans and therefore not taxable (and thus contradict his pleas); assertions of detail that can have no possible bearing on the outcome of the sentencing proceedings; and statements about his personal circumstances, including his health. The second, Exhibit B, is similar. By way of example, the applicant commented on a passage in the short form statement of facts in which were set out a number of transactions said to have occurred at the applicant's direction. The applicant's comment on this was: "The offender was aware that numerous accountants and introducers were receiving moneys through these different trust and company's accounts. The accountants and firms involved were instructing Gadens Lawyers directly at this point. One such accountant firm was Agoston Douglas Partners. Agoston Douglas Partners were a large firm and receiving significant amounts of moneys through Roker Nominees, a Strachans entity. Agoston Douglas Partners also held a debit card (? Ian Davis ?) with Strachans. With the offenders growing family and health issues, he did not understand or oppose what was transpiring." This could have no possible bearing on the outcome of the sentencing proceedings.
In the light of the evidence of Mr Gleeson, I do not accept that the applicant did not see and agree to the long form statement of facts. Moreover, he had had access to the Crown Case Statement for a very long time, and was fully aware of the nature of the allegations against him. The factual basis for Ground 2 has not been established. Nor is there any factual basis for Ground 3. The evidence in support of that is the applicant's assertion that, during the course of negotiations on 8 February, Mr Gleeson said: "The Crown has agreed to drop charges, or roll them up, to just two charges. Further, the Crown would not oppose a 25% discount. Also the Crown would not oppose a period of 1 year custodial sentence." Mr Gleeson denied this conversation.
While I can accept that the applicant may have misunderstood something that was said to him, I consider it unlikely that the statement would have been made, either by the Crown or by Mr Gleeson. First, the pleas of guilty proposed were very late pleas, to be entered on the day fixed for trial. It is well established that the value of a plea of guilty is substantially (but not solely) related to the time at which it is entered. It would be very unusual for a plea entered on the day fixed for trial to attract a reduction of 25 per cent, and very unlikely that any barrister practising in criminal law would make such an assertion, and even more unlikely that a representative of the CDPP would do so. The same applies to the prospect of the applicant being sentenced to imprisonment for only one year in the circumstances of the charges against him. In any event, it is now considered inappropriate for the Crown to identify any range of sentences available in any particular case: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2.
The submissions made in support of the proposed sentence appeal were sparse. In substance, they were limited to a single sentence: "If the court declines to set aside the conviction(s), the sentence appeal should be allowed. The appellant did not agree to the agreed facts."
It was then sought that the matter be remitted to the District Court for sentence by a different judge, and in the alternative, that resentencing in this Court be adjourned for a further hearing.
The latter proposition is untenable. No error has been shown in the approach to sentencing taken by the sentencing judge. There is no basis for remitter for further sentence, and no basis for further evidence to be taken in this Court.
The applicant having failed to identify any arguable ground of appeal against sentence, I would refuse leave to appeal against the sentence.
In reaching this conclusion, I have not overlooked the evidence of Todd and Kaila Conklin, the applicant's son and daughter. Todd Conklin gave evidence of attending with the applicant at a conference with Mr Gleeson in early May 2016, prior to the sentence hearing. He said that the applicant told Mr Gleeson that he was "being tried for the wrong thing" and that he "only agreed to plead guilty with conditions". Mr Gleeson denied any such conversation.
Even if it were to be accepted that such a conversation occurred, it does not avail the applicant. It does not establish that the applicant's argument to plead guilty was conditional. The evidence of what happened prior to 8 February is to the contrary. Moreover, as has been previously emphasised, the "condition" which the applicant now asserts attached to his agreement to plead was, in reality, a contradiction of the admissions inherent in the pleas. Whatever the applicant thought or believed in May, his pleas entered in February were unequivocal.
Kaila Conklin gave evidence of two conferences with Mr Croke, in his offices. She took notes of one of the conferences, and, like Todd Conklin, noted that the applicant made statements that effectively controverted his pleas. She gave similar evidence in relation to a meeting with Mr Gleeson at court on 20 May, prior to the sentence hearing. For the same reasons as relate to Todd Conklin, her evidence does not assist the applicant's case.
The orders I propose are: (1) Leave to appeal against conviction refused; (2) Leave to appeal against sentence refused.
HARRISON J: I agree with Simpson JA.
SCHMIDT J: I agree with Simpson JA.

Amendments 27 November 2017 - 27 November 2017: substitute "agreeing" with "dismissing" in headnote DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2017

HEADNOTE [This headnote is not to be read as part of the judgment] On 8 February 2016, in the District Court the applicant entered pleas of guilty to two offences and convictions were entered. The first offence was of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth), and the second offence was of dishonestly obtaining a benefit by deception contrary to s 134.2(1) of the Criminal Code. The applicant was sentenced to imprisonment for 5 years, with a non-parole period of 2 years and 6 months. Both offences related to the applicant's involvement in fraudulent tax avoidance schemes between 2000 and 2001. The applicant's role in the schemes was to introduce new "investors" to the schemes, for which he was then paid commission. The commission was paid to the applicant through a complex overseas structure comprised of several companies, a trust, and two debit cards taken out in false names. The offences were constituted by the applicant's failure to declare the commission income for taxation purposes, despite receiving the income through this structure over three financial years. Notwithstanding his pleas of guilty, the applicant sought to appeal against the convictions. Leave to do so was required. The application for leave to appeal against conviction related to the integrity of the applicant's pleas of guilty. The applicant contended that the pleas entered did not reflect a genuine consciousness of his guilt for the offences as he had not been provided with adequate legal advice so as to understand the charges, particularly the elements of "dishonesty" and "deception". Further, he contended that his instructions were to plead guilty "with conditions", including that the offences were not committed dishonestly, and that these instructions had not been followed. The applicant was legally represented in the District Court, by a solicitor, Ms Evans, and counsel, Mr Gleeson. In the Court of Criminal Appeal, evidence was given by Ms Evans and Mr Gleeson, as well as the applicant, regarding the legal advice the applicant received before entering his pleas. Contemporaneous notes of conferences with the applicant and counsel, taken by Ms Evans, were also before the Court. An issue was whether the applicant had been taken through the Crown case statement before entering his pleas, and whether he had been advised of the elements of the offences, specifically the elements of "dishonesty" and "deception". The applicant denied that he understood that these were elements of the offences, instead stating that he understood only that he was to plead guilty to receiving money on which he should have paid tax, however maintained that he had an honest belief that he was not obliged to do so. The Court rejected the contention that the applicant did not understand the elements of the charges to which he entered pleas of guilty. In rejecting the ground, the Court considered all of the evidence, noting internal contradictions in the applicant's evidence, including that the applicant contended that he had no understanding of the element of "dishonesty" but also gave instructions to his legal representatives that his conduct was not dishonest. By his application to appeal against sentence the applicant contended that he had objected to various aspects of a short-form draft agreed set of facts prepared by the Crown for the purpose of tendering on sentence, but these objections were unheeded by the applicant's counsel. The applicant also contended that he did not receive the full draft of the agreed facts. Further the applicant contended that he understood his guilty pleas were entered on the basis that the Crown would not oppose a 25 per cent discount for the plea and would not oppose a custodial sentence of only 1 year. In this way the applicant contended that he pleaded guilty with "conditions". Counsel gave evidence that he had taken the applicant through the full-form statement of agreed facts. He also denied that he had ever said to the applicant that the Crown would not oppose a 25 per cent discount and a 1 year custodial sentence if the applicant pleaded guilty. The Court rejected the applicant's contentions, preferring the evidence of Mr Gleeson, and noting that it was very unlikely that criminal lawyers (both Mr Gleeson and lawyers for the Commonwealth Director of Public Prosecutions) would advise the applicant that such a large discount for guilty pleas entered on the eve of the trial, or a sentence of a particular length, would be unopposed by the Crown. Held Per Simpson JA at [1] (Harrison J at [124] and Schmidt J at [125] agreeing) dismissing the appeal: (1) The applicant's purported appeal against conviction is subject to leave, involving a question of fact as to whether his pleas of guilty reflected a consciousness of guilt to all elements of the offences Criminal Appeal Act 1912 (NSW), s 5(1) applied; R v Chiron [1980] 1 NSWLR 218 considered; R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97 considered; R v Sagiv (1986) 22 A Crim R 73 considered; R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unreported) considered; R v Ferrer-Esis (1991) 55 A Crim R 231 considered. (2) The applicant's pleas of guilty were entered out of due recognition of the dishonesty of his conduct, and the inevitable outcome of a trial. There was no miscarriage of justice. R v KCH (2001) 124 A Crim R 233; [2001] NSWCCA 273 considered; Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 considered; Loury v R [2010] NSWCCA 158 considered; Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 considered. (3) The applicant failed to identify any arguable ground of appeal against sentence.

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