R v Aydin & Flett [2005] VSCA 87

Court of Appeal (Vic)|2005-05-03|Before: CALLAWAY, BUCHANAN and EAMES, JJ.A.

Criminal law - Conspiracy to attempt to pervert the course of justice - Late application to amend grounds of appeal against conviction - Application to add further ground refused - Whether judge erred in her directions regarding conspiracy - Whether first applicant's conviction not reasonably supported by the evidence - Applicants an articled clerk and a member of the police force - Whether sentences of five years' imprisonment manifestly excessive - Applications granted and applicants re-sentenced.

"3. The genesis of the conspiracy was the arrest of Reyn Rekhviashvili in the early hours of 16 April 2001 at the Sebel Hotel in St Kilda. Detectives from St Kilda CIU attended at that hotel prior to the arrest and waited for Rekhviashvili to return to his room. At an earlier stage the detectives had observed cash and drugs in the safe in the motel room occupied by Rekhviashvili. One of the detectives, Stephen Trewavas, was the informant in the matter. You, Darrin Flett, a couple of days after the arrest of Rekhviashvili approached Trewavas at the St Kilda CIU offices. You were an experienced detective, having worked there for some time, whereas Stephen Trewavas had graduated from the police academy in 1994, having worked earlier as a uniformed officer for five years at St Kilda. He had limited experience as a detective and had not been trained as a detective formally. At the time he had been at the St Kilda CIU for only one month. You approached him and said, 'It could be very beneficial to you, what's happened to Reyn', Mr Trewavas said 'What?' You said, 'There could be some money in it for you'.

4. A few days after that first approach, you approached him again at the police station and directed him to go up to the roof. You told him you needed to speak to him about the Reyn matter. Once on the roof you said, 'This could be worth $10,000 to you'. Mr Trewavas asked, 'What do you mean?', and you said, 'All you have to do is look after him'. Mr Trewavas said to you, 'How can I look after him? He's been caught with 1200 ecstasy tablets and a heap of cash.' You answered, 'Maybe something in relation to the brief and summary jurisdiction.' Mr Trewavas said there was nothing he could do to help Rekhviashvili as it was out of his hands. You told him that you would go and find out exactly what was required.

5. The third approach you made to him was when you told him that it was worth $20,000 and that you, Flett, would take five for the leg work. Mr Trewavas said he was unsure as to when and where that approach occurred.

6. On 12 June 2001, Mr Trewavas personally delivered the hand-up brief documents to you, Ali Aydin, who at that time was acting on behalf of Rekhviashvili. That day was the last day for the service of the hand-up brief. On that day, you, Darrin Flett were working the same shift as Stephen Trewavas and accompanied him when he attended at the offices of Yiannoulatos Lawyers, where you, Ali Aydin, were working.

7. At the offices of Yiannoulatos Lawyers, negotiations took place between you, Ali Aydin, and Stephen Trewavas, which were quite appropriate in the circumstances. You said that your client would plead guilty if a sentence was deleted from the prosecution summary of evidence charge 7. That charge was 'being in possession of proceeds of crime'. The sentence you wished deleted was this, 'When asked about the cash, the defendant stated he did not know whose it was.'

8. A short time later, you, Darrin Flett, and you, Ali Aydin, Stephen Trewavas and Reyn Rekhviashvili went across Lonsdale Street to the Men's Gallery. Mr Trewavas was told by you, Ali Aydin, that Rekhviashvili was good for $50,000 and that he, Trewavas, would get $20,000 for a favourable summary, summary jurisdiction, and a good word for Rekhviashvili at court, that is, he was assisting the police.

9. On 16 June 2001, the two of you attended at Vodaphone Arena to see a kickboxing match. Mr Trewavas was invited, as was another detective from the St Kilda CIU. This was a Saturday evening and both of you had enjoyed a meal together beforehand and met up with Mr Trewavas at Vodaphone Arena. Upon being seated, you, Ali Aydin, left your seat and then returned to your seat next to Stephen Trewavas. You asked Stephen Trewavas how he wanted the money, cash or casino chips, whereupon you opened your jacket and displayed casino chips to him. Later that day you cashed in casino chips at the Crown Casino for the sum of $10,000. No further approaches were made by either of you to Stephen Trewavas.

10. Mr Rekhviashvili then took the matter into his own hands and approached Stephen Trewavas himself, attempting to bribe him. Stephen Trewavas reported the matter. When he and Rekhviashvili met at the Sienna Café in Chapel Street, Prahran, police officers attended and recorded that meeting, during which time Rekhviashvili attempted to bribe Stephen Trewavas. Rekhviashvili was arrested and later pleaded guilty and has been dealt with in relation to that.

11. The matter which is before the court came to light in October 2001 when the Ethical Standards Department of Victoria Police attended at the home of Stephen Trewavas and spoke to him about these matters. A procedure referred to as 'an induced interview' took place. Mr Trewavas was informed that any answers he gave could not be used against him in a court of law. In 'the induced interview' he informed the investigators of the involvement of each of you as I have set out."

Aydin's conviction

4 There are three grounds of appeal against conviction in the full statement of grounds filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998:

"1. The conviction in all the circumstances is unsafe and unsatisfactory and was against the weight of the evidence.

2. The learned trial judge erred in directing the jury in such a way that if they found Darrin James Flett guilty of the offence charged they would thereby also have to find the applicant guilty of the offence.

3. The learned trial judge erred in directing the jury that they could use the negotiation by the applicant to have a sentence deleted from charge 7 which Rekhviashvili was facing as a piece of evidence upon which they could find that there was a conspiracy between the applicant and Darrin James Flett and that the applicant was a participant in that conspiracy."

"4. The judge erred in her directions by inviting the jury to convict the applicant upon an improper basis, namely, that they could use the evidence of acts committed by the alleged co-conspirator Flett in order to show that the applicant was a participant in the conspiracy."

6 After apprising ourselves of the argument that Mr Tehan desired to advance in support of the proposed ground 4, we said that the application for leave to add that ground would be refused for reasons to be incorporated in our judgments. The following are my reasons.

7 Rule 2.09, in its present form, came into force on 1st July 2004. It was part of a package of amendments recommended by a committee chaired by Charles, J.A. with senior representation from both the Crown and the Bar. One of the purposes of the new rule is to ensure that both sides know, well in advance, the case that will be made. That is in the interests of fairness and designed to enhance the quality of argument. Consistently with those objectives, sub-rule (4) provides that the full statement of grounds required by sub-rule (2) shall set out the grounds relied upon, or to be relied upon, in precise terms and, once filed, may be amended only with leave of the Court of Appeal.

8 In this case notice of the proposed ground 4 was not given until the day before the hearing. At that stage it was described as "a further particular under ground 1". Ground 1 itself is in a form that has been deprecated by high authority but, be that as it may, the proposed ground was neither a particular, nor a further particular, of that ground. Wisely, when application was made in the course of the hearing on 1st March 2005, Mr Tehan re-formulated the proposed ground so that it would be free-standing and not refer to the conviction as "unsafe". This was nevertheless an example of a late application by counsel who had settled the full statement of grounds. No transcript references were incorporated in the proposed new ground and no supplementary outline of submissions or supplementary list of authorities was proffered.

9 The complaint sought to be made under the proposed ground was that evidence of acts committed by Flett could not be used to show that the applicant was a participant in the alleged conspiracy unless the pre-conditions to the admission of that evidence for that purpose, set out in Ahern v. R.[4], were satisfied. That means that the ground was, at best, elliptical. The complaint was not so much about the judge's directions as about non-satisfaction of conditions precedent to using evidence that is hearsay or the equivalent of hearsay.[5] There is no gainsaying the importance of those conditions[6], but the complaint is still a complaint about the use of evidence. It is of the same genus, albeit a different species, as a complaint about other hearsay evidence that is admitted at a trial without objection. No objection or exception was taken below. There is no compelling reason, in the interests of justice, to permit a late amendment of the very kind against which Rule 2.09 was directed.

10 I turn to the other three grounds, in the order in which Mr Tehan argued them, beginning with ground 3. The evidence to which the judge referred in the part of her charge impugned by that ground is summarized in paragraph 7 of the extract from the sentencing remarks set out in [3] above. It will be observed therefore that, when passing sentence, her Honour considered that the negotiations that took place at the offices of Yiannoulatos Lawyers were quite appropriate in the circumstances. Similarly, in the course of the charge, her Honour had directed the jury that counsel had told them correctly about the negotiations that quite often take place between investigating police or a prosecuting authority and the legal representatives of an accused person. It was quite usual and not improper, she said, for such negotiations to take place.

11 It was none the less part of the Crown case that the conspiracy, and the applicant's participation in it, could be inferred, among other things, from his request to Mr Trewavas that a damaging sentence be omitted from the prosecution summary of the evidence relating to charge 7. How, counsel asked rhetorically, could that be right if the negotiations to delete the sentence were quite appropriate and not improper? Mrs Quin conceded that, looked at in isolation, the negotiations were proper but, she submitted, they could be used as evidence of the conspiracy and of the applicant's participation when they were considered in conjunction with other evidence, including the continuation of the conversation a short time later in the Men's Gallery.[7] Further, her submission proceeded, the relevant parts of the charge always put the negotiations in a wider context.

12 In the course of her charge the judge told the jury that the allegation by the Crown was of an agreement between the two accused to approach Mr Trewavas with the intention that he be improperly influenced in relation to the prosecution of Rekhviashvili, contrary to his duty, by not opposing summary jurisdiction, to delete the sentence from charge 7 and to falsely state to the Court that Rekhviashvili was a police informer. Later she said:

"As to the accused Ali Aydin, the evidence upon which you are entitled to determine [the question whether he was a participant in the conspiracy] in relation to Mr Aydin is the utterances and conduct of Mr Aydin as alleged by the Crown. Namely, (1) On 12 June 2001, when the hand-up brief in the prosecution of Rekhviashvili was served upon the defendant Rekhviashvili and Mr Aydin, the Crown case is that Mr Aydin said that he wanted a sentence deleted from the summary of evidence from charge 7, being that the defendant was in possession of proceeds of crime. That sentence was, "When asked about the cash, the defendant stated he did not know whose it was." Mr Trewavas' evidence was that Mr Aydin asked for that to be removed and that his client would plead guilty to the charges.

The second piece of evidence is later that day, or a short time thereafter, at the Men's Gallery, Mr Trewavas' evidence that Mr Aydin said that Mr Rekhviashvili was good for $50,000 and Mr Trewavas would receive $20,000 for a favourable summary, summary jurisdiction and a good word for Rekhviashvili at court and that he was assisting the police or an informer.

The third piece of evidence is the approach by Ali Aydin to Mr Trewavas at the Vodafone Arena on 16 June 2001. Mr Trewavas' evidence is that after receiving a telephone call, Mr Aydin left his seat and, upon his return, sat down next to Mr Trewavas and asked him how he wanted his money, cash or Casino chips, whereupon Mr Aydin opened his jacket and displayed Casino chips to Mr Trewavas."

13 Her Honour also referred to the conversation the subject of ground 3 in her summary of counsel's final addresses. The prosecutor may have gone further than the summary in his address, but the relevant passage is not easy to understand and nothing was said at the trial. Otherwise innocent conduct can, in context, be evidence of a conspiracy or participation in a conspiracy. I am not persuaded in the present case that there was any wrong decision on a question of law or miscarriage of justice, within the meaning of s.568(1) of the Crimes Act 1958, by reason of the way in which the Crown sought to rely on the attempt to have the sentence deleted.

14 Counsel then argued ground 2. He conceded that the judge gave a separate consideration direction and that she did not specifically direct the jury that, if they found Flett guilty, they would have to find the applicant guilty too. Nevertheless, he submitted, the effect of her Honour's directions was to allow the jury to reason in that way.

15 The judge explained to the jury that they had to be satisfied of two matters. The first was whether there was a conspiracy to attempt to pervert the course of justice as alleged by the Crown. If the jury were satisfied beyond reasonable doubt as to that first question they would then "go on to determine the case against Ali Aydin, namely whether the Crown had proved that he was a participant". If they were satisfied of that, the correct verdict was to convict the applicant. (As we shall see in the next paragraph, that was subject to the rider that, if the jury were not satisfied as to either one or other of the accused, the appropriate verdict was not guilty for both.) Then, the charge continued, they would move on to determine the same question with respect to Flett. Then her Honour said, "If, however, you are not so satisfied of that second question, in relation to Ali Aydin, the correct verdict is an acquittal for Mr Aydin and an acquittal for Mr Flett, because the conspiracy is between the two."

16 The charge continued:

"If you are satisfied in relation to Mr Aydin, you move on to Mr Flett and the question is was Darrin Flett a party to that agreement, in the sense that he agreed with Ali Aydin to do a series of acts which had a tendency to pervert the course of public justice as alleged in the presentment and at the time of agreeing to this, he had intended that he and Ali Aydin should carry it out. If you are satisfied in relation to that second question as to each accused, the correct verdict is guilty. If you are not so satisfied as to either one or the other, the appropriate verdict is not guilty for both."

17 Her Honour referred again to the two questions, whether there was a conspiracy and participation, later in the charge. She described the second question as "whether each accused was a participant in the conspiracy" and, before giving the direction that was complained of in the proposed ground 4, said that the jury should look first at the evidence of the acts and conduct of the particular accused under consideration. She then reviewed the evidence peculiar to the applicant before explaining how evidence relating to Flett could be used against him too. That part of the charge concluded with a direction that, if the jury were not satisfied beyond reasonable doubt that the applicant was a participant, the proper verdict was an acquittal of both accused.

18 I would not uphold ground 2. There is a world of difference between directing a jury that, if they acquit A, they must also acquit B and directing them that, if they convict A, they must also convict B. There is no reason why the jury would have concluded that her Honour was giving them the second kind of direction, particularly given her emphasis on the case against each of the two accused and the separate consideration direction earlier in the charge. It may also be, as Eames, J.A. suggested in the course of the argument, that, on the facts of this case, it was inevitable that, if the jury convicted Flett, they would also convict the applicant.

19 The last ground argued was ground 1. Two contentions were advanced. The first was that the jury could not be satisfied that the alleged conversation concerning removal of a sentence from the summary of evidence was improper. The second was that Mr Trewavas was such an unreliable witness, uncorroborated and lacking in credit, that the verdict of the jury could not be supported by the evidence. The attempt to remove the sentence was not an element of the offence. It was part of the evidence of the conspiracy. I do not think I can usefully add to what I have said on that topic in relation to ground 3.

20 Mr Trewavas was cross-examined on behalf of both Aydin and Flett. The judge gave the jury a direction about prior inconsistent statements and related the direction to his evidence. In summarizing counsel's addresses, she referred to defence counsel's attack on Mr Trewavas and listed the reasons they had advanced why the jury should not accept his account as truthful or reliable. The assessment of Mr Trewavas's evidence was a matter for the jury and, in my opinion, it was open to them to accept his evidence. It was not of the kind referred to by Mason, C.J., Deane, Dawson and Toohey, JJ. in M. v. R.[8]

21 I would not uphold ground 1 and, in the light of my conclusion on the other grounds, I would dismiss Aydin's application for leave to appeal against conviction.

Aydin's sentence

22 There are three grounds of appeal against sentence in the full statement of grounds filed pursuant to Rule 2.09:

"1. The head sentence and the non-parole period are manifestly excessive.

2. The learned sentencing judge erred in failing to place any or any sufficient weight upon:

(ii) the loss of the applicant's professional career;

(iv) the applicant's personal circumstances and background;

(v) the applicant's psychiatric and psychological condition;

(vi) the three year delay between the offence and the passing of sentence and the effect this had upon the applicant;

(vii) the position of the applicant as an articled clerk under the influence of Kirsch;

(viii) the fact that the applicant was in protection and would be likely to serve his sentence in protection; and

(ix) the fact that the applicant was the major witness in a forthcoming murder trial.

3. The learned sentencing judge erred in ordering that the sentence she imposed upon the applicant be served wholly cumulatively with the sentence imposed upon the applicant by Judge Strong."

23 Mr Tehan treated ground 2 as providing particulars of ground 1 and briefly elaborated the key points made in paragraphs (i) to (ix). Under cover of ground 3, he submitted that there should have been only partial cumulation, because the offence occurred at about the same time as, and in similar circumstances to, the offence that Aydin committed with Kirsch. It was part of the same police investigation. The sentence imposed on Aydin for the offence committed with Flett was five years' imprisonment, to be served cumulatively upon the sentence imposed by Judge Strong. The total effective sentence was therefore six years' imprisonment. Total cumulation with the sentence that we have substituted in response to the Director's appeal[9] would result in a total effective sentence of seven years' imprisonment.

24 In Director of Public Prosecutions v. Aydin and Kirsch[10] I referred to the fact that, in sentencing the present applicants, Judge Douglas took into account that their approaches to Mr Trewavas "were not made in a context of harassment, intimidation or any standover tactics". So far as offence seriousness was concerned, the offence that Aydin committed with Kirsch was worse than the offence he committed with Flett. The substituted sentence of two years' imprisonment for the offence committed with Kirsch was reduced because of double jeopardy, but I do not think that a sentence of five years' imprisonment for the offence committed with Flett was within the range.

25 I differ from the learned judge, mainly because of the mitigatory factors to which Mr Tehan referred, but I respectfully endorse her Honour's view that it was an important circumstance of aggravation that Aydin was an articled clerk and Flett an experienced member of the Victoria Police. I shall return to that matter below. At present, it is sufficient to add that, although Aydin has lost his career as a lawyer, that is only one factor to take into account. For a member of the legal profession, or a person with legal training intending to enter that profession, to conspire to attempt to pervert the course of justice[11] is, as Judge Douglas said, conduct calling for condign punishment.

26 I propose orders, in relation to Aydin's sentence, in accordance with the following minutes:

1. Grant the application for leave to appeal against sentence, treat the appeal as instituted and heard instanter and allow the appeal.

2. Set aside the sentence imposed by the County Court on 16th August 2004.

3. In lieu thereof, convict the appellant and sentence him to be imprisoned for two years.

4. Direct that 12 months of that sentence be served cumulatively upon the sentence of two years' imprisonment imposed by the Court of Appeal in Director of Public Prosecutions v. Aydin, making a total effective sentence of three years' imprisonment.

5. Fix a new single non-parole period, pursuant to s.14 of the Sentencing Act 1991, of 22 months beginning on 16th August 2004.[12]

Flett's sentence

27 There are two grounds in the full statement of grounds filed pursuant to Rule 2.09. Ground 1(c) was not argued. The remaining grounds read:

"1. The learned sentencing judge failed to accord any, or sufficient, weight to:

(b) the fact that, by reason of the applicant's conviction, the applicant had lost his vocation or career as a police officer;

(d) the especially onerous circumstances in which the applicant, as a former police officer, would be required to serve the custodial portion of the sentence imposed upon him.

2. Both the head sentence imposed upon the applicant, and the non-parole period fixed, are, in all the circumstances of the case, manifestly excessive."

28 Mr Holdenson put at the forefront of his submission Flett's previous good character and the contributions which, it was accepted, he had made to the community. He had been involved in fund-raising for charity and worked with children.[13] Until this offence had come to light, he had had a reputation as a conscientious, able and diligent police officer. Now, like Aydin, but as a fully qualified policeman, he had lost his career.[14] Upon being charged with this offence, he had been suspended without pay and, as a former policeman, he would serve his sentence in protective custody. The object of the conspiracy had not been achieved, Flett was unlikely to re-offend and there had been a delay of almost three years between being charged and the imposition of sentence. As the judge said, that was no one's fault.

29 The mitigatory matters to which Mr Holdenson referred are entitled to weight, some of them to considerable weight, but general deterrence as well as just punishment must be emphasized when a member of the police force conspires to attempt to pervert the course of justice.[15] The judge referred to some observations of Young, C.J. in R. v. Kellow and Townsend[16]. I agree with her Honour that they are relevant to the task in hand. In that case two police officers had pleaded guilty to one count of perjury. The learned Chief Justice said[17]:

"It is the fact that the offences with which we are now concerned were committed in connection with the administration of justice and the fact that they were committed by members of the police force that make them particularly serious. Public confidence in the administration of justice is vital to the welfare of society, and apart from the legal profession there are few groups in the community who are more closely connected with the administration of justice than the police force ..."

"In my opinion, however, the offences merit a custodial sentence and they do so very largely because they were committed by police

officers. Police officers stand in a special position in relation to offences connected with the administration of justice, and the Court cannot be seen to condone or to treat lightly wilful and corrupt perjury when committed by members of the force."

30 It is considerations of that kind, bearing as they do on general deterrence and just punishment, that limit the leniency that might otherwise have been extended to Flett. Moreover, as an experienced detective conspiring to corrupt a relatively inexperienced member of the force, he was more culpable than Aydin. In his case I propose orders in accordance with the following minutes:

1. Grant the application for leave to appeal against sentence, treat the appeal as instituted and heard instanter and allow the appeal.

2. Set aside the sentence imposed by the County Court on 16th August 2004.

3. In lieu thereof, convict the appellant and sentence him to be imprisoned for two-and-a-half years.

4. Fix a non-parole period of 21 months.

31 I do not forget that Judge Douglas fixed a non-parole period in Flett's case that was only 50% of the head sentence. In re-sentencing, I propose a different approach because of the lower head sentence. A non-parole period of less than 21 months would, in my judgment, undermine the purposes for which the sentence of two-and-a-half years' imprisonment is imposed.[19]

---

32 I am of the opinion that the application by Aydin for leave to appeal against his conviction should be refused for the reasons stated by Callaway, J.A. I agree with his Honour that in the circumstances of this case the application to add a ground of appeal should be refused. I would allow the appeal against sentence by

both applicants for the reasons stated by Callaway, J.A. and re-sentence the applicants as his Honour proposes.

33 I agree with Callaway, J.A., that, for the reasons given by him, the application made on behalf of Aydin to add to the grounds of appeal ought be refused and his application for leave to appeal against conviction ought be dismissed.

34 I also agree with Callaway, J.A., again for the reasons given by him, that the applications for leave to appeal against sentence ought be granted, the appeals be taken to have been instituted and heard instanter, and allowed, and the applicants be re-sentenced as his Honour proposes.

[1] As the count was of conspiracy, it is hard to understand why it did not charge a conspiracy to pervert the course of justice rather than a conspiracy to attempt to pervert the course of justice, which is the effect of the words used in the presentment. See R. v. Aydin [2005] VSCA 85 at [5] and R. v. Rogerson [1992] HCA 25; (1992) 174 C.L.R. 268 at 279-281.

[2] See R. v. Aydin [2005] VSCA 85.

[3] Director of Public Prosecutions v. Aydin and Kirsch [2005] VSCA 86.

[4] [1988] HCA 39; (1988) 165 C.L.R. 87.

[5] Ahern v. R. at 93.

[6] See R. v. Pektas [1989] VicRp 21; [1989] V.R. 239.

[7] Sentencing remarks, paragraph 8.

[8] [1994] HCA 63; (1994) 181 C.L.R. 487 at 494. See also Jones v. R. (1997) 191 C.L.R. 439.

[9] See [1] above.

[10] At [20].

[11] See fn.1 above.

[12] See Director of Public Prosecutions v. Ibrahimoff [2001] VSCA 46; (2001) 3 V.R. 66 at 67 [6]- [7].

[13] Sentencing Act 1991, s.6(c).

[14] Compare Hook v. Ralphs (1987) 45 S.A.S.R. 529 at 543.

[15] See fn. 1 above.

[16] Unreported, Court of Criminal Appeal, 17th August 1979. In addition to the passages about to be quoted, see also 5-6 relating to the applicants' loss of their careers.

[17] At 5.

[18] At 6-7.

[19] R. v. VZ [1998] VSCA 32; (1998) 7 V.R. 693 at 697 [15].

Supreme Court (Criminal Procedure) Rules 1998

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