R v Craker [1999] VSCA 63

16. Shortly after the sentence was passed, the then solicitors acting for the applicant filed on his behalf a notice of application for leave to appeal against sentence in respect of the six theft counts (but not in relation to the perjury charge). On 12 May 1997 the Registrar granted the applicant leave to amend the proposed grounds of appeal by the addition of five further grounds.

19. By letter dated 9 July 1997 addressed to the Registrar, the applicant applied for leave "to amend my grounds of appeal against the conviction of the offence of perjury imposed upon me", essentially on the basis that his counsel had failed to provide evidence "that would have vitiated the statutory declaration". As I understand it, this was a reference to the applicant's claim that the statutory declaration was signed by him under economic duress imposed by AMP officers. The Registrar replied by letter dated 12 August 1997, advising the applicant that he had not lodged any relevant application for leave to appeal in respect of his perjury conviction and that if he desired to do so, it would be necessary to lodge an application for extension of time together with a notice of application for leave to appeal. The Registrar enclosed with his letter the relevant forms for the assistance of the applicant, asking him to complete and return them to him, whereupon the application for extension of time would be considered. The Registrar also informed the applicant that if he were to proceed with an application for extension of time, his application for leave to appeal against sentence in respect of the theft charges, which was fixed for hearing on 18 August 1997, would have to be further adjourned while any application for extension of time was being considered. The Registrar obviously wanted to avoid two hearings, one relating to the theft charges and the other relating to the perjury offence.

22. Not having received any application for extension of time from the applicant by 18 August 1997, the Court, on that day, dealt with his application for leave to appeal against sentence in relation to the theft convictions. After hearing the applicant in person the Court dismissed that application.

25. By notice dated 16 September 1997, the applicant applied for extension of time within which to lodge notices of appeal against conviction and sentence in respect of the perjury offence. His stated reasons for failing to lodge such notices within the prescribed time were that, in respect of the appeal against perjury conviction, "counsel for the applicant refused to enter a plea of not guilty". He further said that he was subsequently informed by practitioners that he could not appeal against the conviction while his plea of guilty was on record and that he had only recently discovered that this was untrue. The applicant's stated ground in support of the application for an extension of time to appeal in respect of the sentence was that his then solicitor who lodged the initial notice in relation to the theft charges had, without his knowledge, neglected to include in it an appeal in relation to the perjury charge. Nothing, however, was said by the applicant as to why he had not filed the application for extension of time before 18 August 1997.

28. Attached to the notice of application for extension of time were notices of application for leave to appeal against conviction and sentence. There is a good deal of overlap between the grounds relating to the proposed appeal against conviction and those which are referable to sentence. In essence, however, his stated grounds in relation to the proposed appeal against conviction are these:

(a) the prosecutor's summary of facts and his submissions to his Honour disclosed no offence - since no offence was disclosed, the plea of guilty was, in effect, vitiated; and

(b) the conviction was against the evidence and the weight of the evidence.

34. As to the proposed sentencing appeal, the stated ground are these:

(a) the conviction was wrong in law and not supported by the evidence;

(b) the applicant was coerced into pleading guilty; and

(c) the penalty was manifestly excessive and was not in parity with that imposed on Wright.

40. For the purpose of this application I treat the grounds referred to in (a) and (b) above in relation to the proposed sentencing appeal as also being referable to the proposed appeal in relation to conviction.

43. On 6 November 1997, the Registrar rejected the application for extension of time and by notice dated 12 November 1997, the applicant elected to have his application determined by the Court of Appeal as he is entitled to do under s.582A(2) of the Crimes Act 1958.

46. These then were the circumstances in which the applicant has sought an extension of time in which to apply for leave to appeal against his conviction and sentence relating to perjury.

49. Generally, the court will only grant leave to extend time to file application for leave to appeal against either conviction or sentence if it is satisfied on appropriate material that:

(a) sound reasons exist to explain the failure to apply for leave to appeal within the time limited by statute;

(b) there is merit in the proposed application in the sense that the applicant has reasonable prospects of success if the application were to proceed.

(R v O'Keefe [1979] VicRp 1; [1979] V.R. 1 at 5; Jackamarra v Krakouer [1998] A.L.R. 276 at 294-7; R v Fridey (unreported, Court of Appeal, 4 March 1999) per Winneke, P. at 2-3; R v Sleddon (unreported, Court of Appeal, 10 June 1992) at 3-4; and R v Brown and Chandler (1985) A.Crim.R. 257 at 261, 263.) These considerations encompass matters such as the length of the delay, the public interest and, where it is relevant, the extent of any prejudice that may be suffered by the respondent.

56. The Crown opposes the application on the basis that the applicant has not made out the above requirements. I agree with that submission

59. In my view, the applicant has no reasonable prospect of succeeding in his proposed appeal against conviction.

(a) He pleaded guilty to a presentment which was adequately particularized and which included the offence of perjury. He was then represented by counsel and it was on that basis that he was sentenced by the court and no doubt the fact of the plea was taken into account in his favour when sentence was being considered. Such a plea constitutes an admission by him of each ingredient of the charge (R v. D'Orta-Ekenaike [1998] 2 V.R. 140 per Winneke, P. at 146-7). Consequently, until the plea and conviction are set aside, they remain on foot and the applicant is bound by his admission. In very exceptional circumstances the court has jurisdiction to allow a defective plea to be withdrawn and the conviction to be set aside (Maxwell v R (1996) 184 C.L.R. 501, 502), but no application for leave to withdraw the plea and to set aside the conviction based thereon has been made. Even if the present application were to be treated as an application to withdraw the plea, the material before the court would not, in my view, warrant such leave being given.

(b) Even if the plea of guilty were to be put to one side, the applicant has no real prospect of persuading, in my view, the court that he did not commit the offence of perjury. He has pleaded guilty to defrauding the AMP during the relevant period. Since there is no doubt that on the evidence he made a declaration to the contrary, the conclusion is inescapable that he knew that the declaration was false at the time he made it.

(c) The applicant's grounds of the proposed appeal against conviction are misconceived. The prosecutor's summary of the facts and submissions on the plea were not intended, and did not constitute, evidence led from the purpose of establishing the perjury. Rather, it was material that was presented to the court in the context of the applicant having admitted the offence in order to assist the court in understanding the circumstances in which the offence occurred. Included in that material was the statutory declaration signed by the applicant and a statement made by the solicitor who witnessed his signature on the document on 15 May 1990.

65. I am also of the view that the applicant has no arguable ground of appeal against sentence. Not only was the three month sentence imposed by the learned judge within the available range, it is arguable that it was at the lower end of it and most merciful to the applicant. His claim of lack of parity with the sentence imposed on Wright is also without substance. There were material differences between the two cases. First, Wright pleaded guilty at an early stage of the proceeding. Next, Wright gave evidence on the hearing of the plea in mitigation and swore that he would give evidence against Craker. Further, the sentencing judge was appraised that Wright had spent 19.5 months in custody in a Philippines gaol prior to being extradited to face the then current charges. His Honour also had before him character evidence, written references and a psychiatric report. Wright received a total effective sentence of 21 months which was wholly suspended and was ordered to pay $41,059.77 to AMP as restitution.

68. Moreover, in my view, the applicant has not provided any sound reason for the long periods of delay during which he failed to apply for leave to appeal or to seek an extension of time. For instance, he has offered no explanation as to when and the circumstances in which, he first learned that the notice seeking leave to appeal, which was filed on his behalf shortly after he was sentenced on 25 October 1998, did not encompass the perjury conviction. The appeal papers were with him or available to him for over six months before he first raised the matter with the Registrar on 9 July 1997. Further, no explanation has been given for the delay in filing his application for extension of time, notwithstanding the Registrar's letter to him of 12 August 1997, which included the warning that his application for leave to appeal against sentence, which was fixed for hearing on 18 August 1997, would have to be further adjourned if the application for extension of time were to be pursued. The applicant chose not to respond to the Registrar's letter until after the rejection by the court on 18 August 1997 of his application for leave to appeal in relation to the theft charges.

71. The applicant has long since served the sentence imposed on him in relation to the perjury charge and it would make a mockery of the administration of criminal justice and would amount to a waste of public funds if he were to be permitted to argue his application for leave to appeal, notwithstanding the matters to which I have referred, including his deliberate decision to delay bringing his application for extension of time until after 18 August 1997, thereby necessitating two hearings if his application were granted, one which was held on 18 August 1997 and the other one today or even at a later date.

74. For these reasons I would dismiss the application.

79. I agree that the application should be dismissed for the reasons which Chernov, J.A. has advanced.

82. Mr Craker, I think I should say this to you that the application for leave to appeal against your conviction on the charge of perjury is, in my view, misconceived. Generally speaking, where a person has pleaded guilty to the charge and the plea has been accepted and a penalty imposed by the court, Part 6 of the Crimes Act confers no right of appeal against the conviction which it so records and the Court of Appeal will not entertain an application for leave to appeal against that conviction. A plea of guilty accepted by the court is a formal admission, as I have indicated to you, of all the essential ingredients of the charge. There are rare and exceptional circumstances where an appellate court has been prepared, even in circumstances of a plea of guilty, to set aside a conviction recorded. Those circumstances have been described by this Court recently in cases of Tait and Parsons. The circumstances which have been described in those cases do not extend to your case where the offence was quite valid on its face and was an offence of which you could have been lawfully convicted.

85. The only submission which is, as I understand it, now made is that effectively you had a good defence to the charge which was made of perjury. However, this Court will not entertain any investigation into matters of that sort which are, after all, subsumed by your plea of guilty in accordance with which the conviction was recorded. Do you follow?

90. I therefore agree with Chernov, J.A., this application must be refused.

95. I agree that the application should be dismissed for the reasons given in both the preceding judgments.

100. The formal order of the Court will be that the application for leave to extend the time for appealing against conviction and sentence on the count of perjury is refused.