Graham v Victoria Legal Aid [2001] VSC 90

5. There had to be a hearing over three days for reasons that included that Colin Graham was unrepresented and in custody. There were difficulties about his being able to satisfactorily present evidence before me. I eventually heard oral testimony from Colin Graham, from his estranged wife Roslyn Graham, from his former solicitor, from his sister, and from his former bank manager. I also had available to me a copy of the hand-up brief and committal hearing transcript, and an affidavit with 24 exhibits sworn by a VLA grants officer. It was accepted by both Colin Graham and by Ms Ellyard, who appeared for VLA, that I could have regard to the contents of the further documents as well as to the oral testimony, and from those sources, I have prepared the history of events that follows.

8. On 26 January 1980, Colin Graham married. He and his wife Roslyn lived at 12 Herbert Street Ringwood, taking out a home loan from the Commonwealth Bank ("the bank"). Until about 1994, Colin and Roslyn Graham worked as employees, and both contributed to paying off the home loan. From about 1994, Colin was self-employed and embarked on business ventures. The bank lent further moneys, including by way of overdraft, on the security of the home. The money went in part for renovations, and in part towards the business ventures of Colin Graham. Roslyn Graham did, but Colin Graham did not, contribute to the repayment of the loans from the bank. By late 1999, the amount owed to the bank was approximately $80,000.

11. On 1 October 1999, the body of Hilary Stevens was found. On 19 October 1999, Colin Graham told police that he had last seen Hilary Stevens about 3 weeks before she died. On 27 October 1999, he told police that he had a casual but not a sexual relationship with Hilary Stevens, and that he did not want to jeopardise his 20 year old marriage. In November 1999, Colin Graham asked his solicitor to prepare a transfer of 12 Herbert Street from the joint names into the name of Roslyn Graham alone, and that was done.

14. On 24 February 2000, Colin Graham was arrested, interviewed and charged with the murder of Hilary Stevens. From that date, Colin Graham has remained in custody. During the interview, he said that he had been with Hilary Stevens on 1 October, that she had had a go at him with a weapon and he had taken it off her and had struck her with it. On the same day, Roslyn Graham provided to the police and signed a detailed statement, which included a reference to Colin Graham being with her on the night of 1 October 1999. On 26 February 2000, a conversation between Colin Graham and Roslyn Graham was covertly recorded. At that time, Colin Graham said, amongst other things, that he had admitted to self defence, that he could sign the transfer, and that he wanted his wife to be there when he got out. On 29 February 2000, Roslyn Graham went to the solicitor who had prepared the transfer, and collected it from him. On the same day, she went to the bank.

17. On 30 March 2000, Roslyn Graham provided to the police and signed a second statement, in which she said that Colin Graham was not with her on the night of 1 October 1999. 31 March 2000 is the date written in on a transfer of 12 Herbert Street into the name of Roslyn Graham. Her signature was witnessed by Paul Shepherd from the bank. It was not established before me who witnessed the signature of Colin Graham. On 31 March 2000, a stamp duty exemption record was made on the transfer. The transfer ("the March transfer") was not lodged at the Titles Office until months later.

20. On 22 August 2000, Slades & Parsons, solicitors, forwarded to VLA a letter enclosing an application for legal aid form signed by Colin Graham. In the letter it was stated, amongst other things: the family home is in the name of the wife of Colin Graham; she has no savings; she is not prepared to liquidate savings to pay legal fees; his sister has paid legal fees of $2500 incurred to date. The answers given in the application form have to be understood in the context that the form makes use plentifully of the defined expression: "financially associated person". In response to Question 28 as to home ownership, 12 Herbert Street is written in with an estimated sale price of $128,000 and a mortgage figure of $54,000 owing. On 25 August 2000, VLA wrote to Slades & Parsons seeking more information, and VLA also effected a title search of 12 Herbert Street, which showed Colin Graham as a joint proprietor. In September 2000, three follow-up letters were sent by VLA to Slades & Parsons. Dated 25 September 2000, with a stamp duty record of 27 September 2000, is a transfer of 12 Herbert Street from Roslyn Graham to a Shane Centonze-Williams. Stamp duty is stated to be $4960 on a consideration of $155,000. The transfer ("the September transfer") was not lodged at the Titles Office at that time.

23. VLA prepared a form of equitable charge over the title to 12 Herbert Street for signature by Colin Graham. On 16 October 2000, the equitable charge form was signed by Colin Graham. On about 30 October 2000, VLA lodged at the Titles Office a caveat relying on the equitable charge.

26. On 14 December, the March and September transfers were lodged by the bank with the Titles Office. On 19 December, the VLA was notified by the Titles Office of the transfers. On 22 December VLA wrote to Colin Graham criticising him for not notifying VLA of the transfers. On 28 December and on 9 and 25 January 2001, Colin Graham responded. Amongst other things, he said: that he and his wife had separated in September-October 1999; that he had given instructions to his solicitor in November 1999 to transfer 12 Herbert Street to Roslyn Graham in settlement of any claims she might have against him; that he had been told that she had sold 12 Herbert Street in September 1999; that he had also been told that from the sale proceeds $80,000 had gone to the bank and "the rest" was used to pay out creditors; that he had rarely seen Roslyn Graham since being in custody; and that before he had signed the equitable charge he had told a representative of VLA of the earlier transfer, but had been told to sign the form anyway.

29. On the material before me, even before any oral testimony was heard, it seemed clear that much depended upon what had happened to "the rest". Inferentially, "the rest" was an amount of around $70,000. The answer as to what happened to the rest was provided by Roslyn Graham when she gave evidence before me on 2 April. She said that, in late February 2000, she had gone to the bank which had been pressing for payment of what was outstanding. She had engaged the services of an estate agent and had sold 12 Herbert Street. She had relied on the bank in dealing with the proceeds of sale. The bank took what was owed to it. There were no other creditors. She had spent the rest of the proceeds on herself and her mother, including taking her mother on a trip overseas. She now had left only a small amount of the order of a couple of thousands of dollars.

32. Colin Graham was cross-examined by Ms Ellyard. He conceded that there was a degree of inconsistency in what he had said to VLA at different times. Although given the opportunity, Colin Graham made no submissions to me. It was as if he relied on the facts speaking for themselves. Ms Ellyard put to me that I should find that the evidence of Colin Graham had been unreliable in material respects. She argued that I should find, under the applicable legislative provisions, that he had effective control over 12 Herbert Street and the proceeds of its sale. She put to me that I should not be satisfied that Colin Graham had proved that he was unable to afford private representation. More specifically, she argued that I should not be satisfied that he had no interest in the proceeds of the sale of 12 Herbert Street.

35. The relevant legislative provisions are in Section 360A of the Crimes Act 1958 and in Sections 9 and 10 of the Confiscation Act 1997. The applicable parts of Section 360A are as follows:

(b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial - the court may order Victoria Legal Aid to provide legal assistance to the accused ...

(4) (b) the legal burden of proof for the purposes of sub-section (2)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused;

(c) for the purposes of proving under sub-section (2)(b) that the accused is unable to afford the full cost of obtaining legal representation, regard must be had to property -

(i) that is subject to the effective control of the accused (whether or not the accused has an interest in it); or

(ii) in which the accused has an interest -

as determined in accordance with section 9 or 10 of the Confiscation Act 1997...

The relevant provisions in Sections 9 and 10 of the Confiscation Act 1997 are as follows:

9 (1) ... property may be subject to the effective control of a person whether

or not the person has an interest in it.

(2) In determining whether or not property is subject to the effective control of a person...regard may be had to-

...

(c) family, domestic, business or other relationships between persons having an interest in the property...and other persons.

10 ... property in which the defendant has an interest includes -

(a) any property that is, on the day when the first application is

made...subject to the effective control of the defendant

(b) any property that was the subject of a gift from the defendant to

another person -

(i) within the period of 6 years before the first application

I can understand VLA taking a somewhat jaundiced view of what has transpired in this case. VLA's perception that it was entitled to rely on an equitable charge has proved to be unfounded. VLA appears to have relied on the title details, despite being told by Colin Graham not to do so. I do not know why the bank opted not to lodge the March and September transfers with the Titles Office until December. I can see no basis for attributing any blame for the delay to Colin Graham. Colin Graham provided information to VLA that could be seen to be misleading in some respects. As to what he wrote in the application form as to the owning of a home, one must take account of the framing of the question and the contents of the letter sent to VLA with the form. As to what he said in his letters about creditors being paid "the rest", he did say that that was what he had been told. I am a little troubled as to what he said were the reasons for transferring his half interest in 12 Herbert Street to his wife. He seems to have shifted ground at times. In the end, I was satisfied that there was adequate evidence pointing to Roslyn Graham being entitled to treat the balance of the proceeds of sale as hers to spend as it pleased her to do.

46. There is no longer any fund out of which money to pay the cost of private legal representation could be met. If I had concluded that Colin Graham and his wife had conspired to sell 12 Herbert Street and salt away or spend the proceeds, I would have had to consider exercising a discretion under S.360A not to make an order. There was no issue as to the appropriateness of legal aid being granted for reasons other than "affordability". Accordingly I ordered that VLA provide assistance to Colin Graham for his trial on its ordinary terms and conditions.

49. I noted earlier that there were difficulties in Colin Graham presenting evidence before me. He has been in custody since his arrest in February 2000. He has been unrepresented. He wanted to have witnesses called to give evidence, but had not the means or ability to achieve that without assistance. Against the opposition of Ms Ellyard, I directed that VLA cause subpoenas to be issued and served on witnesses nominated by Colin Graham. I said that I would reserve the question of the payment of expenses to any witnesses. I fix the expenses of two witnesses, solicitor Dean Beveridge at $300 and accountant Charles Wallace at $350. In an appropriate case, it may be that the court should meet such expenses. In this case, I am satisfied that VLA should do so, since it has unsuccessfully opposed the application, and since it was reasonable for Colin Graham to request that the witnesses be called.