1. It is unnecessary, at this point, to set out the evidence given by the applicant's former solicitor, or the instructor for the Crown. I shall deal with that evidence shortly.

1. The Chief Judge approached the matter before him on the basis that the applicant bore the onus of establishing that a miscarriage of justice would arise if he were not permitted to resile from his plea. That onus had to be discharged on the balance of probabilities.
2. The Chief Judge also stated that the question whether the applicant had pleaded guilty freely and voluntarily, or whether he had been improperly induced to do so, was a question of fact.[6]
3. His Honour then set out in some detail the totality of the evidence that had been led before him. In his written submissions, and in his oral argument before me, the applicant did not challenge the accuracy of the Chief Judge's summary of the evidence. It is unnecessary for me to replicate that summary, and it is sufficient simply to refer to paragraphs [18]-[54] of his Honour's reasons for judgment.[7]
4. For present purposes, it is sufficient if I note simply that counsel who had appeared on behalf of the applicant before Judge Taft, and who was called by the Crown to rebut the applicant's claims before the Chief Judge, denied almost all of the allegations made regarding what he was supposed to have told the applicant.
5. I note also that the solicitor who had appeared on behalf of the applicant, and who also gave evidence before the Chief Judge, largely supported the account given by counsel. That support was only qualified by the fact that the solicitor had not been present throughout all of the discussions that took place between the applicant and counsel on 30 and 31 May 2011.
6. As will be seen, the evidence given by the Crown instructor was also generally supportive of the applicant's counsel's account of what had taken place, although the applicant sought to make something of a 'concession' that she had supposedly made.
7. Because of what this Court had said in Guariglia, the critical issue, so far as the Chief Judge was concerned, was whether the applicant had decided to plead guilty, at the latest, by the morning of 31 May 2011, and before Judge Taft came into Court on that day. If so, anything said by Judge Taft on that day as to the strength of the Crown case, whether strictly appropriate or not, could not have had any material bearing upon the applicant's decision to plead guilty.
8. The Chief Judge, having considered the evidence in its entirety, decided that factual issue adversely to the applicant. He found that although there had been no formal offer to plead guilty before Judge Taft said what he did on the morning of 31 May, the die was already cast, and the applicant had already determined to do so.

8 The majority decision in Guariglia v The Queen[8] expressly envisaged that there may be cases where an otherwise objectionable judicial intimation does not have a material effect on the course taken by an accused.[9] Accordingly, it was open to the Chief Judge to formulate the critical issue before him as he did. The transcript demonstrates that on 30 May 2011 Judge Taft said nothing about the strength of the prosecution case. Nor did he do more than state the effect of the statutory scheme with respect to pleas of guilty. Indeed he expressly disclaimed any intention to apply pressure to the applicant.

9 Both before Weinberg JA and before us the applicant challenged the Chief Judge's finding that the applicant had decided to plead guilty at the latest before court commenced on 31 May 2011.

10 Subject to one elaboration, I agree with the analysis of the relevant evidence made by Weinberg JA:[10]

1. The Chief Judge found that the applicant had been 'a little disingenuous' when, in his affidavit, he 'merged the judge's statement about the discount with the statements about the strength of the prosecution case as if they had occurred contemporaneously.'[11] As the transcript quoted above makes clear, Judge Taft made no comments whatsoever regarding the strength of the prosecution case on 30 May 2011.
2. The Chief Judge then said that 'it is clear from the evidence of Mrs Palankay, [the applicant's counsel] and [the applicant's solicitor] that the [applicant] was considering pleading guilty on the Monday night [i.e. 30 May 2011]'.[12] Further, the evidence, including that given by the prosecutor, and the Crown's instructing solicitor, made it clear that an offer to plead guilty had been made on behalf the applicant prior to the commencement of the matter on 31 May 2011.[13]
3. It is useful to refer briefly to the evidence of the solicitor for the Crown on this point, upon which the Chief Judge, in part, relied:

MR MILESI: Were you aware of any other discussions between [counsel for the applicant] and Mr Johnson on that day?---Not on the Monday, no.

What about on the Tuesday?---I arrived at court on the Tuesday and I - as soon as I walked in I asked Mr Johnson something regarding preparation of the case. He said that mightn't be necessary.

THE CHIEF JUDGE: Just a moment. So you asked about witnesses and things like that?---Yes and record of interview, I'd been the one who'd asked [counsel for the applicant] about that.

He said?---That mightn't be necessary and then just said to sit down as the judge was coming in. I can't remember his exact words; whether it was, "We might settle the matter." All I can remember along the lines of, "I don't think that's necessary; we might resolve; we might settle." It was something along those lines.

It mightn't be necessary and then the judge was knocking?

---Then the judge came in, yes.

1. The prosecutor's evidence regarding the events of 30 and 31 May 2011 was as follows:

MR MILESI: Do you have any recollection and can you please enlighten the court of your recollection of negotiations that you had with [counsel for the applicant] who was appearing on behalf of the accused and how the matter ultimately resolved?

MR JOHNSON: ... My recollection is that the first time ... that the suggestion of resolution of the matter was concerned took place when His Honour came on the bench and I think His Honour mentioned something along those lines.

Which day was that Mr Johnson?---That was the first day. The first day, the Monday.

...

MR MILESI: And when you were given - provided with an offer was that by [counsel for the applicant]?---Yes.

And can you recall specifically when that was?---Um I'm pretty sure that it was very - we got to court at half past ten and I'm pretty sure the offer was made to me at that point before the judge came on the bench.

All right?---That's my recollection.

1. The Chief Judge noted in his reasons for judgment that the applicant's counsel, on the change of plea application, in cross-examining the solicitor for the Crown, had 'left open' the possibility that a conference occurred after court on 31 May 2011. The relevant passage is as follows:

So it's entirely possible isn't it that after His Honour rose, [counsel for the applicant] approached Mr Palankay, confirmed his instructions and confirmed the position to Mr Johnson. That's entirely possible isn't it?---It's possible, I didn't observe it if it happened, but it's possible.

1. Despite the solicitor's 'concession' that it was 'possible' that the plea offer had been 'confirmed' after Judge Taft left the bench on 31 May 2011, his Honour concluded that the better view was that which had been expressed by Mr Johnson. He said that there was no cogent evidence that there had been any such conference. He noted that counsel for the applicant's evidence was in conflict with that suggestion.[14] In those circumstances, he found that the evidence 'can lead to no other conclusion than the applicant had given instructions to proceed with plea negotiations prior to his Honour coming onto the bench.'[15]
2. As to the effect of the comments allegedly made by the applicant's counsel, the Chief Judge found that although counsel did say something to the applicant about the prosecutor's personal position regarding a suspended sentence, he was unable to say, with any precision, what in fact had been said. Whatever was said, however, was 'clearly hedged by the requirement that the prosecution would have to get instructions, and that the judge was the final determiner'.[16] For that reason, the Chief Judge did not accept that the applicant 'could have considered that the prosecutor would be "neutral" on sentence and certainly not that he could bind the Director of Public Prosecutions'. It was always known that the sentencing judge would have the 'final say'.[17] That was particularly so given that the applicant had had some previous experience of the sentencing process.[18]
3. The Chief Judge added that counsel had, quite properly, pointed out to the applicant that he had little prospect of successfully defending the vast majority of the charges, and had pointed out - again quite properly - that the applicant would gain some benefit from a plea of guilty.[19]

11 The elaboration I would make is that the full form of the trial judge's summary of Mrs Palankay's evidence was as follows:[20]

1. In her evidence Mrs Palankay confirmed that the applicant said that on the Monday evening that he was considering pleading guilty because he thought he might get a suspended sentence. When Mrs Palankay was asked if the applicant has said that anyone had told him whether he would receive a suspended sentence she said that the applicant said 'he had been in discussion all-day with Mr Higham and that, you know, they'd decided that it might be a good idea for him to plead guilty to a few of the lesser, smaller charges and just say that he did them because then he'll get a lesser sentence and he can continue his business and it would all be back to normal.
2. Mrs Palankay said she challenged the applicant questioning why he would plead guilty if he was not and the applicant told her he would get a discounted sentence and he had pressures at the time and he had to work and the trial would be long, and he wanted to get on with his life and he wanted to get it over with and that he said 'he'd get a lesser, you know, lesser sentence. He could be just on a suspended sentence and he could just keep on moving as if everything was normal and keep working and do whatever'. She said the applicant had told her that he had told his barrister that he had decided to plead guilty.

Conclusion on application for leave to appeal against conviction

12 In my opinion the conclusions of the Chief Judge accorded with the weight of the evidence.

13 Grounds 1, 2 and 3 of the applicant's written case are as follows:

Ground 1: The judge was confused about, and mistook, the evidence in relation to witness, Ms Judith Palankay, where he placed her at court and in a conference, against the facts, and ruled on evidence that was not open to him, thereby causing a miscarriage of justice.

Ground 2: The judge was confused about, and mistook, the evidence in relation to when the offer was made (by the applicant) to plead guilty, ruling contrary to the evidence and thereby causing a miscarriage of justice.

Ground 3: The trial judge was not impartial - he was a moving part in complaint proceedings and should have been disqualified. Through apprehended bias, impartiality has been offended, resulting in a miscarriage of justice.

14 As Weinberg JA held, whilst it may be inferred from the Chief Judge's reasons that he mistakenly placed the applicant's mother at court on 31 May 2011,[21] nevertheless this implicit error was one which related to an absence of supporting evidence only. As Weinberg JA noted the Chief Judge was in any event plainly entitled to accept the evidence given by trial counsel for the applicant that he had received instructions from his client that he intended to plead guilty before attending court on the morning of 31 May 2011. Counsel's evidence was:

Certainly by the time we come to - by the time he came to my chambers on Tuesday morning he had said to me 'yes I am going to plead guilty'.

15 The terms of the transcript of 31 May 2011 are entirely consistent with this evidence. That transcript commences with trial counsel stating:

MR HIGHAM: Your Honour, if I can kick off as it were. Your Honour, I spent yesterday going through the papers as I already had done, but we're in the company of Mr Palankay. To put matters shortly, Your Honour, identifying potential forensic difficulties. I put that as neutrally as I can, as delicately, but not too delicately I'm sure, Your Honour. I spoke to my learned friend last night, had a conference with Mr Palankay this morning.

The upshot of it all is, the Crown and defence are currently now trying to resolve matters.

16 Further the evidence of the applicant's mother was in part that the applicant told her on the evening of 30 May 2011 that he had told his barrister he had decided to plead guilty. In addition the evidence of the prosecutor and his instructor tended to confirm an offer of settlement was made before the trial judge came onto the bench.

17 The implicit factual error relied on in proposed ground 1 of appeal was nothing more than a slip with respect to the evidence relating to collateral circumstances. I do not accept the applicant's submission that any slip must invalidate the Chief Judge's conclusions. The error relied upon did not amount to a vitiating error. It does not demonstrate that his Honour's conclusions were incorrect. His Honour's conclusions accorded with the weight of the evidence.

18 There is no substance to ground 1. It is not reasonably arguable.

19 Ground 2 contends that the Chief Judge's conclusion was contrary to the evidence. I do not accept this is so for the reasons identified by Weinberg JA:[22]

1. In argument in support of this ground, the applicant first relied upon the evidence of his solicitor to the effect that there was 'nothing decisive' as to a plea after the matter had been stood down on 31 May 2011. As the Crown pointed out however, that evidence is not inconsistent with that given by counsel for the applicant. The details of the indictment to which the applicant would plead were, at that stage, still being worked out. In that sense, there could be nothing 'decisive', in a strict sense, regarding the plea because the deal had not been finalised.
2. The applicant next referred to the prosecutor's evidence that the applicant's counsel had only formally put the offer to him once Judge Taft had left the bench on 31 May 2011. The relevant passage of the prosecutor's evidence is as follows:

MR MARSH: And am I right in saying that it's difficult for you to recall at this stage whether the final offer was put to you before His Honour came into the bench or after His Honour left the bench?

MR JOHNSON: My recollection is I had a pretty good idea before he came on the bench and he might have formally put it to me after His Honour left the bench but I can't answer that question.

1. The prosecutor's evidence in this regard cannot be determinative of the ultimate question. As the Chief Judge noted:

Whether there were in place formal instructions [to plead] or not is not to the point. The only relevant consideration was whether the applicant made up his mind independently of any statements by the judge about the strength of the prosecution case.[23]

1. As previously indicated, the applicant relied upon the 'concession' by the solicitor for the Crown that she could not exclude the possibility that the applicant and his counsel had conferred after Judge Taft left the bench on 31 May 2011. In my view, that evidence does not materially assist the applicant's case. The fact remained that the Chief Judge was plainly entitled to find that no such conference in fact took place. For the reasons given earlier, that finding was open on the evidence.
2. The applicant also relied upon several passages from the transcript of the proceedings before Judge Taft on 31 May 2011, and particularly upon the following statement by his counsel:

But I am now focusing on a possible resolution that is on the back of my mind, it's on the backburner and it'll be brought forward.

1. Properly understood, this passage does not indicate that the applicant had not yet decided to plead guilty. Rather, it reads to me as an indication by counsel that his client had agreed to plead guilty to a shortened indictment, and that no final conclusion had yet been reached as to the precise form that indictment would take.

20 In my view the Chief Judge was plainly entitled to accept the evidence of the applicant's counsel that the applicant had decided to plead guilty by the morning of 31 May 2011 before court commenced. It is true that at that point the Crown response to the applicant's offer had not been finalised. In particular, agreement had not been reached as to the precise terms of a reduced indictment. Nevertheless the Chief Judge's conclusion that Judge Taft's remarks on 31 May did not materially influence the applicant's decision to plead guilty accorded with the weight of the evidence.

21 I do not accept the applicant's submission that it would be illogical for him to decide to plead guilty before the terms of the reduced indictment were finalised. In my view, the reverse is probable.

22 In argument today, the applicant took us to other detailed aspects of incidental findings made by the Chief Judge. None of these persuade me that his Honour's fundamental finding on the facts was incorrect.

23 Lastly in this connection, I should say that there is some real force in Mr Kidd's submission on behalf of the Crown, which was adopted in the appeal before us, that this is not a case like Guariglia. Most obviously, there was, unlike Guariglia, a serious issue of fact as to the sequence of instructions given by the applicant, in respect of which the applicant bore the onus of proof. In particular, in the present case, the evidence of the applicant's trial counsel did not support his version of events. At a more fundamental level, however, there were other differences. First, the judge did not in this case set out to influence the applicant to change his plea from not guilty to guilty by advising him as to his prospects of being found guilty and of the advantages to him of changing his plea. Rather, the trial judge responded to defence counsel's indication of the course his client proposed to follow when he expressed views about the strength of the Crown case.

24 Secondly, the statements made by the trial judge did not go as far as those made in Guariglia. The trial judge expressly noted that although some aspects of the Crown case were strong on their face, others were not. Further, he did not suggest in any way the applicant would receive more than the usual and proper discount for pleading guilty.[24]

25 In my view, ground 2 is not reasonably arguable.

26 Ground 3 alleges bias on the part of the trial judge and is articulated in the written case by reference to statements made both on 31 May 2011 and during the plea hearing. It was not pressed in argument before us, but for completeness I will say something briefly about it.

27 Prior to the completion of the plea hearing and the imposition of sentence, the applicant was given the opportunity to have his plea heard before a different judge. He elected to proceed before Judge Taft. It cannot now be said that statements made prior to his plea should be regarded as somehow disqualifying Judge Taft from imposing sentence. The election which the applicant was given involved no miscarriage of justice.

28 Insofar as complaint is made with respect to observations made by his Honour during the plea hearing, those matters go to sentence rather than conviction. Further, none of the matters raised do more than amount to frank discussion of matters going to the applicant's culpability.

29 Ground 3 has no reasonable prospects of success.

30 Accordingly, the application for leave to appeal against conviction should be dismissed.

32 At the outset of the leave application before Weinberg JA, counsel for the Crown raised the question whether the applicant should have been sentenced as a continuing criminal enterprise offender. If the applicant were to be so regarded, the applicable maximum penalty for the relevant counts would be 20 years rather than 10 years' imprisonment. As his Honour's analysis demonstrates, it is plain that three of the five counts of obtaining property by deception on which the applicant was convicted involved a continuing criminal enterprise offence because the property

obtained had a value exceeding $50,000 in each case. Further, as his Honour concluded:[25]

1. This Court will only allow an appeal against sentence [if] it is satisfied that 'a different sentence should be imposed'.[26] If the sentencing discretion were to be re-opened, then the applicant would have to be sentenced as a continuing criminal enterprise offender. The Court would be obliged to impose a sentence which took into account the fact that the applicable maximum penalty, for the continuing criminal enterprise offences that the applicant committed,[27] was 20 years' imprisonment rather than ten years. That alone is a very powerful indicator that there is no reasonable prospect of any lesser sentence being imposed.
2. When that consideration is combined with the fact that the applicant had a prior history involving dishonesty offences involving cheques that were not honoured, and that his conviction on counts 5 and 6 breached a suspended sentence imposed in 2007, the chances of any lesser sentence being imposed by this Court would have to be regarded as remote. One can add to that the sentencing judge's finding that the applicant's prospects of rehabilitation were poor.[28]

34 When these matters were further agitated with the applicant before us this morning, he elected not to press his appeal against sentence.

35 It follows, for the reasons I have given, that the applications for leave to appeal must be refused.

37 The order of the court will be that the applications for leave to appeal against conviction and against sentence will be refused.

[1] Palankay v The Queen (Unreported, Court of Appeal, Justice Weinberg, 8 March 2013) [5]-[31] (citations in original except for transcript references, which have been omitted).

[2] (2010) 208 A Crim R 49 ('Guariglia').

[6] Palankay v DPP (Unreported, County Court of Victoria, Chief Judge Rozenes, 19 October 2011) [17].

[8] (2010) 208 A Crim R 49 ('Guariglia').

[9] Ibid (Nettle JA with whom Hansen JA agreed) 59 [33].

[10] Palankay v The Queen (Unreported, Court of Appeal, Justice Weinberg, 8 March 2013) [33]-[40] (citations in original except for transcript references, which have been omitted).

[11] Palankay v DPP (Unreported, County Court of Victoria, Chief Judge Rozenes, 19 October 2011) [39].

[14] Palankay v DPP (Unreported, County Court of Victoria, Chief Judge Rozenes, 19 October 2011) [39].

[20] Ibid [29] - [30] (footnotes omitted).

[21] The Chief Judge observed that 'neither the applicant nor his mother [made] any reference to a brief conference after court [on 31 May]'.

[22] Palankay v The Queen (Unreported, Court of Appeal, Justice Weinberg, 8 March 2013) [47]-[52] (citations in original except for transcript references, which have been omitted).

[23] Palankay v DPP (Unreported, County Court of Victoria, Chief Judge Rozenes, 19 October 2011), [38].

[25] Palankay v The Queen (Unreported, Court of Appeal, Justice Weinberg, 8 March 2013) [67]-[68] (citations in original).

[26] Criminal Procedure Act 2009 s 281(1)(b).

[27] See R v Roussety [2008] VSCA 259; (2008) 24 VR 253.

[28] DPP v Palankay (Unreported, County Court of Victoria, Judge Taft, 2 December 2011) [50].