OTHER CONVICTION GROUNDS
55 Some grounds can be disposed of briefly. Ground 3 fails: it is appropriate on an application for leave to withdraw a plea to consider whether there is a real issue to be tried, and this is what the primary judge did. Ground 4 fails: rejection of an application for leave to withdraw a plea did not involve a trial on indictment within s.80 of the Constitution. Ground 8 fails: the evidence of Mrs. Parkes was not admitted; nor was it inadmissible since s.18 of the Evidence Act does no more than limit the compellability of spouses to give evidence. Ground 12 fails: the appellant's evidence in support of his application to withdraw his plea raised and dealt with his communications with his legal advisers, so that evidence as to those communications from his advisers was no longer excluded by privilege.
56 The remaining grounds are more substantial, and I will briefly outline the appellant's submissions, which were long and extremely repetitious.
57 The appellant pointed to cross-examination of Mr. O'Connor before the primary judge, in which Mr. O'Connor admitted inter alia that on 6 April 2001, he was pretty "clueless" about the terms of the matter, had not issued subpoenas, did not have a copy of the s.19 examinations, and had not requested particulars of the four charges. The appellant submitted that he met his barrister Mr. Gelbert for the first time on the morning of 12 June 2001, had a two-hour conference with him on 13 June, when he was advised to plead guilty but asked Mr. Gelbert to see documents held by ASIC; and was told by him on 14 June that he had been to ASIC and they did not have any documents, and that he could not get the transcript of the committal proceedings. The appellant submitted that Mr. Gelbert's evidence that he had a meeting with the appellant before 12 June, when he explained the elements of the offence, was incorrect, because Mr. Gelbert is recorded in the transcript of 12 June as saying he had met the appellant for the first time that morning.
58 The appellant referred to documents that he later obtained, and inaccuracies in the Statement of Facts, the general nature of which is referred to above.
59 The following alleged errors in the judgment of the primary judge were identified, in that, contrary to statements in the judge's reasons: first, there was evidence of rent paid by the appellant and/or Mrs. Parkes; second, there was no justification for the primary judge's adverse finding on the appellant's credit; third, moneys were recovered; fourth, there was evidence that the directors and/or the credit committee knew and approved of the transactions; fifth, there were assertions and evidence as to who was or was not the beneficiary of the First Capital Trust; sixth, there was evidence that the sum of about $145,000.00 referred to in the second count was a loan to Pantec on commercial terms for which security was given; seventh, there were circumstances affecting the integrity of the plea; and eighth, the appellant was not advised by competent and experienced Counsel and was pressured to plead guilty. I will deal with these suggested errors in turn.
60 In considering whether there were such errors, it is useful to have regard to the relevant elements of the offence. There was no question that the appellant was an officer of Schoeller and that he caused Schoeller to pay the sums in question. The possible issues related to whether this use was improper, whether the appellant intended to gain an advantage for himself and/or Mrs. Parkes, and whether the appellant acted knowingly and dishonestly in this regard. In the present case, the use would be improper if not for the purposes of the company. The provision of accommodation for Mrs. Parkes and the children would be an advantage for himself and/or Mrs. Parkes, at least unless this was for full consideration. The actions would be knowing and dishonest if the use was not for the purposes of the company and if it was not intended that full consideration be given by the appellant and/or Mrs. Parkes, and if the appellant appreciated these things.
61 Dealing with the first and second criticisms of the primary judge's judgment, evidence of rent paid by the appellant and/or Mrs. Parkes could be relevant to these issues, if they could help combat inferences that the transactions were not for the purposes of the company, were intended to be an advantage to the appellant and/or Mrs. Parkes, and that the appellant appreciated these things.
62 Evidence relevant to the actual payment of "rent" by the appellant and/or Mrs. Parkes consisted of documents indicating the following:
1. $1,300.00 paid to Kremnizer & Co., Solicitors on 7 March 1997.
2. $240.00 paid to Kentwell & Taylor on 24 September 1997.
3. $2,047.50 paid to Smithers on 24 September 1997.
4. $1,253.33 paid to S. & L. Helprin on 24 September 1997.
5. Promises dated 2 December 1997 of payments for Smithers of $2,502.50 on 2 December 1997 and 5 December 1997, and $2,957.50 by 12 December 1997.
6. Promises dated 23 April 1998 of payments for S. & L. Helprin of $1,410.00 on 23 April 1998, for Smithers of $2,502.50 on 24 April 1998 and 1 May 1998, and Kentwell & Taylor of $293.33 on 24 September 1998.
7. Actual payment of the first two of those payments.
8. Payments of $1,410.00 to S. & L. Helprin and $2,502.50 to Smithers by 22 May 1998.
63 The only other document concerning rent was a Barrack document as at 30 June 1998 suggesting an expectation of rent at $400.00 per week in respect of the First Capital Trust; but there was no evidence that this rent was actually paid.
64 There was no document suggesting any money was actually paid by the appellant or Mrs. Parkes as rent to the mortgagor of the property. There was no evidence that anything was paid by them prior to 7 March 1997, after Schoeller had been placed into administration on 12 January 1997 and after the appellant ceased to have any role in the management of Schoeller. The evidence available suggested no more than payments to mortgagees of amounts not related to any rent figure, but rather to meet amounts owing to mortgagees, and to avoid loss of possession to mortgagees.
65 In those circumstances, in my opinion there was no material error by the primary judge in saying that there was no evidence of payment of rent, or in the primary judge reaching the view that the evidence of the appellant that he withheld rent was "off the top of his head". The reasonable inference was that the money that was paid was paid after the appellant lost his connection with Schoeller, simply to meet the requirements of mortgagees, and thus was in no real sense rent. The evidence so regarded could not materially combat inferences that the transactions were not for the purposes of the company, were intended to be an advantage to the appellant and/or Mrs. Parkes, and that the appellant appreciated these things.
66 Turning to the third suggested error, evidence that Schoeller's money or some of it was recovered could not directly combat the relevant inferences, but could possibly lend indirect support to defences seeking to combat these inferences. In fact, there was evidence that $40,000.00, representing the amounts in the first count and the two offences in the schedule, was repaid on or about 24 October 1996 from the second mortgage on the property.
67 However, this could not help combat the relevant inferences, because the payment was not made out of funds of the appellant or Mrs. Parkes but out of a mortgage on the property itself, increasing the amount owing on the property and thereby reducing the chance that there would ultimately be an equity in the property out of which Schoeller could recover the amount of about $145,000.00 referred to in the second count. Furthermore, the same evidence shows a further $9,000.00 of Schoeller's money being paid out in respect of this second mortgage on 18 November 1996.
68 Accordingly, while the statement of the primary judge that moneys were not recovered was not strictly correct, this error was not material.
69 Turning to the fourth matter, evidence that the transactions were known to members of the Credit Committee and/or the Board could help combat relevant inferences, but only if the knowledge extended to relevant aspects of the transaction, including its commercial reality and the role of the appellant and Mrs. Parkes in it. Bare reference in Credit Committee or Board documents to the execution of the second mortgage or the withdrawal of caveat would be of the slightest relevance. In my opinion, there was no material error by the primary judge in saying there was no evidence that the Credit Committee or directors knew and approved of the transactions.
70 As regards the fifth matter, there was evidence that the true purchaser was a trust in which the Parkes family was not named as a beneficiary; but the named beneficiary was only a further trust, so this evidence did not take the matter much further. The appellant alleged this trust was associated with the ultimate owners of Schoeller; but if in fact the beneficiary was an owner of Schoeller, this would not contribute to the propriety of the transaction. A company cannot properly divest itself of property for the benefit of shareholders. In any event, there was no material error by the primary judge in circumstances where there was no evidence as to what persons were the ultimate beneficiaries.
71 As regards the sixth matter, the fact that the sum of about $145,000.00 was documented as a loan to Pantec, which had given security, could help combat the relevant inferences, if the purpose of Schoeller was suggested to be a commercial transaction with Pantec, and Pantec was suggested to be the beneficial owner of the property. However, the security in question was a general security given earlier, with no significant evidence of its value, and apparently already securing a debt of about $200,000.00. The apparent payment of $6,623.00 to Schoeller out of the second mortgage is of minimal relevance. Further, there was no suggestion that Pantec was intended to be the beneficial owner of the property, and no substantial explanation of why Pantec would have made available $145,000.00 lent to it for the purposes of the trust which was the purchasing party, apart from vague suggestions of connections between Pantec and the trust. The confusing relationships between the various entities if anything tended to support the inferences against the appellant. In my opinion, no error is shown by the absence of reference to these matters by the primary judge.
72 Finally, as regards the seventh and eighth matters, no doubt the appellant would have wished to have the opportunity to have access to all company documents held by himself and the liquidator and others, and to have legal advisers examine minutely all these documents and advise as to whether anything in all these documents might possibly assist in his defence; and he did not have this opportunity. However, to a large extent this was his own fault. He had many documents in his own possession, which he did not investigate: the appellant has told us that he probably has copies of many Board minutes and the like, which he has not been able to access since he has been in prison. However, he took no steps to this end between his committal and 25 May 2001.
73 I accept that Mr. Gelbert was probably in error in his assertion that he had a conference with the appellant about a week before 12 June 2001, having regard to his statement to Armitage DCJ. But having regard to all the circumstances of this case, I do not think the evidence suggests that the appellant did not have an adequate appreciation of the facts and the elements of the offences with which he was charged, nor does it suggest pressure such as to deprive the plea of its character as expressing genuine recognition of guilt. In my opinion, there was no error by the primary judge in finding that the appellant was advised by competent and experienced Counsel, and was not pressured into making this plea.
74 In all the circumstances, I am not satisfied that material error has been shown in the judgment of Christie DCJ such as to justify appellate intervention.