R v Paul Michael OFFER

K G Horler QC - Appellant COUNSEL : R A Hulme - Crown Macquarie Lawyers - Appellant SOLICITORS : S E O'Connor - Crown CATCHWORDS : Appeal against conviction - After guilty plea - Principles applicable - No factual basis R v Hura (2001) 121 A Crim R 472 CASES CITED: R v Meissner (1995) 184 CLR 132 R v Bayliss [2002] NSWCCA 11 DECISION : 1. That the appeal on conviction be dismissed; 2. That leave to appeal against sentence, be granted and; 3. That the sentence appeal be dismissed.

IN THE COURT OF CRIMINAL APPEAL 60620/00

MASON P DOWD J BUDDIN J

Thursday 15 AUGUST 2002 R v Paul Michael OFFER Judgment

1 MASON P: I agree with Dowd J. 2 DOWD J: This is an appeal against conviction and an application for leave to appeal against a sentence imposed on the appellant, who pleaded guilty to two offences, before Greg James J, asking that three further offences be taken into account. 3 On 25 August 2000, the Learned Sentencing Judge, sentenced the appellant to a ten year fixed term, commencing on 17 October 1997 on a charge of Cause Grievous Bodily Harm to Nagwa Gerges, at St Ives on 25 February 1997. He was further sentenced to thirty four years imprisonment, for the murder of Ronald Mills, at Allawah, with a non-parole period of twenty five years, the sentence to commence 27 October 1997, when he went into custody, the non-parole period commencing on that date and concluding on 16 October 2022. 4 In sentencing for murder His Honour took into account three offences, being: 1. An offence of Solicit to Murder, being the soliciting of Alan Seaton at Sydney in 1997, to murder Ronald Mills. 2. An Offence of Solicit to Murder, being the soliciting of Alan Seaton at Sydney in 1997, to murder Maher Nicola Gerges. 3. An Offence of Solicit to Murder, being the soliciting of Alan Seaton at Sydney in 1997, to murder Mark Chapman.

Facts in Count 1 5 The shooting of Nagwa Gerges in the head, with a bolt from a crossbow, occurred when she answered the door of her home in St Ives, the appellant having intended to kill her husband Maher Nicola Gerges. Mr Gerges found his wife lying near the front door with a bolt in her head. He, in panic, removed the bolt. The victim suffered severe head and brain injuries and now suffers from a permanent semi paralysis of her right side, with moderate to severe weakness to her right upper limb and milder weakness to her right lower limb. Mrs Gerges suffers from lack of peripheral vision on her right side and has slurred speech. She suffers from major depression, insomnia, alternating mood swings and impaired concentration. 6 The appellant initially denied the offence alleging that he, his wife and their three young children had travelled to the Gold Coast on the day before and he denied ever possessing a crossbow alleging he had seen a crossbow at the Gerges home some time earlier. 7 Anonymous information provided to Crime Stoppers resulted in the location of crossbows with similar metallic shafts and vanes to that used to wound Mrs Gerges.

Facts on Count 2 8 On the evening of 27 September 1997, neighbours heard a car leaving the home of Mr Mills, a marine electrician who lived alone. On 30 September 1997, the victim's body was found with a shot in the head. 9 The investigation by police revealed a connection between the shooting of Mr Mills and that of Mrs Gerges, in that Mr Mills, Mr Gerges and Mr Martin Chapman were witnesses for the prosecution, in court cases where the appellant had been charged. 10 The appellant and Mr Gerges had worked together and had worked on friendly terms until they had a falling out. The appellant operated a tow truck and Mr Gerges a panel beating and spray-painting business. The appellant had visited the Gerges home. There was considerable ill feeling between the appellant and Mr Gerges relating to their business interests and consequent upon Mr Gerges giving evidence against the appellant in two different court proceedings, the appellant having been charged in one of those matters with possession of a stolen rotor and drill, which he said he had purchased from Mr Gerges. Mr Gerges had given a statement to police, a fact within the knowledge of the appellant. 11 In February 1997, Mr Gerges had given evidence against the appellant on this charge, although the subsequent conviction which occurred was quashed on 14 September 1999. 12 On 28 February 1997, the appellant was charged in relation to a boat fraud, in conjunction with an accomplice, such charge not yet having been dealt with. Maher Gerges, Ronald Mills and Mark Chapman had made statements to police, which were served on the appellant's legal representatives. These statements, revealing the business addresses of Mr Gerges, Mills and Chapman and additionally the home address of Chapman, which was not then known to the appellant. 13 The committal proceedings for the boat fraud were to commence on 13 October 1997. The motive relied on by the Crown, in the offences, the subject of this appeal, was that the appellant decided to eliminate witnesses in the offences set out above. On interview by the Police, the appellant provided an alibi, which was later shown to be false. He had also denied possession of firearms or ammunition or knowing the deceased Mr Mills. 14 After an extensive search of the appellant's Ford Falcon and his motor home, a considerable amount of weapon paraphernalia was recovered, such as a pistol silencer, a gun cleaning kit, crossbows with metallic shafts and vanes, similar to that used on Mrs Gerges and a business card of Chapman. It was shown that the appellant's credit card was used to purchase the gun cleaning kit on 17 September 1997. A balaclava and a nine millimetre Luger pistol, the murder weapon, loaded with seven live rounds were found. Also found was a laser sight with instructions suitable for attachment to a crossbow and documents which established the appellant's presence in Sydney in early October 1997. 15 Photographs, documents and phone numbers were found in the appellant's motor home, relating to Gerges and Mills and to Seaton, the subject of the soliciting charges. A considerable amount of relevant ammunition was found, as well as a photograph of Mr Gerges and his home and business address records on a piece of paper, documents relating to gun laws in Queensland and business cards in the name of Mills and phone numbers in Sydney. A number of relevant phone numbers were found on the mobile phone records of the appellant. 16 In relation to the Form 1 matters, an advertisement had appeared on 21 October 1997, in a Sydney newspaper which was read by the Alan Seaton referred to in the Form 1 charges. He contacted the appellant's wife and on realising these matters were related to recent approaches by the appellant to him, Seaton contacted the police. 17 From early September 1997, Seaton received a number of phone calls from the appellant, which related to the appellant needing people to be "looked after". Seaton said he never took the appellant seriously because it was the sort of thing they would joke about. Consequent upon this, Seaton received a number of names and addresses in the mail, the paper on which they were written, he did not keep, of three men and that one of the three men lived in Allawah (Mills), another in Drummoyne (Chapman), and a number of phone calls occurred, in one of which the sum of $10,000 was mentioned and reference to Maher Gerges having set the appellant up for fraud. 18 Seaton prevaricated for a while until Seaton and the appellant met on 8 October 1997, when the appellant gave details of Maher Gerges, who was due to give evidence the following Monday at the Committal proceedings on 13 October 1997. On leaving with the appellant in the car, Seaton saw that he had a Luger pistol, which Seaton handled. The magazine was empty. The appellant said that it was his. The appellant put it on the floor of the car and covered it with a coat. This was the weapon used to shoot Mills. The request by the appellant to "fix up" Maher Gerges was repeated the next day to Seaton, the appellant told Seaton that he was taking the car, which he had hired, back to Queensland. 19 Seaton went to the police and disclosed the approaches made by the appellant to him. 20 At the appellant's request Seaton visited the appellant at Silverwater gaol between 23 October 1997 and 5 November 1997, wearing an authorised listening device, which recorded references by the appellant to the approaches that the appellant had made to Seaton to carry out the murders and also recorded admissions by the appellant that he had shot Mills and Mrs Gerges, and the fact that a false alibi had been created by the appellant with his wife, Sandra McDonald. The appellant, as pressure on Seaton, used the fact that Seaton's finger prints were on the pistol which he had handled in the car and that the appellant threatened to identify Seaton as the murderer. Seaton pretended that he would help the appellant. 21 Seaton introduced the appellant to an undercover Police Officer as a "friend" of Seaton, who would assist getting the appellant out of gaol. Sandra MacDonald was arrested in respect of her part in helping arrange false alibis. Seaton arranged to meet McDonald in October 1997 at the premises of a hiring business. Access was gained to a storage unit from which was recovered a package containing a crossbow and bolts similar to those referred to above. Incriminating documentary evidence was also found in the appellant's cell which appeared to be a fabrication of evidence by the appellant to discredit Seaton, Gerges, Mills and the Police Officer in charge of the case. 22 On the appellant becoming aware of Seaton's co-operation with the police, the appellant attempted to discredit Seaton by making a wide range of criminal allegations against Seaton, including an allegation as to Seaton's involvement in the shooting of the former politician John Newman. 23 A letter addressed to the appellant, which was sent him by a female friend was intercepted by gaol authorities, the enclosed document purported to be an admission by Seaton that he killed Mills and tried to kill Mrs Gerges. In the appellant's cell, material was found which included documents purporting to be Statutory Declarations by Seaton, witnessed by a Justice of the Peace. Neither Seaton nor the witness had signed this document. The Seaton signature had been traced from the statement furnished to the appellant as part of the prosecution brief in the committal proceedings. 24 This summary of the facts relating to the two convictions and the three matters taken into account on the Form 1, identify some of the more salient features of what was a very extensive and strong Crown case.

The Appellant's Case on this Appeal 25 The appellant was indicted before Greg James J on 26 April 2000, on the first and second count and the three matters, which were later taken into account, charged as substantive charges. The appellant pleaded not guilty to each of the five counts and a trial proceeded with Mr Newport QC as Crown Prosecutor, and Mr J Spencer, an experienced criminal advocate appearing for the appellant. 26 On 1 May 2000 the appellant was re-arraigned on counts one and two and he pleaded guilty to both counts, the appellant asking the Learned Sentencing Judge to take the remaining three counts into consideration on a Form 1, on the murder charge. There was a further hearing on sentence on 18 August 2000, and on 25 August 2000, the appellant was sentenced as indicated above. 27 On sentence the appellant's case was that he had no criminal convictions in his home country of Ireland, he having a small number of minor offences in Australia. He also tendered a psychologist's report. 28 The facts in the appellant's case on appeal were contained in an affidavit read before this Court deposing to the fact that he was born in Dublin, Ireland on 26 September 1964 and was qualified as a marine engineer and that he was a married man with three children having first come to Australia in 1988. 29 When arrested on the five subject charges he said he was committed for trial during 1999, having no legal representation. He said he suffers from dyslexia being first diagnosed at the age of four, and that he had difficulty in reading and in particular hand written work and that he told his solicitor Mr Ray Finlayson, to whom he had been referred subsequent to the committal, of that fact, at their first meeting on 24 May 1999. 30 The appellant deposed that at the trial, originally fixed for 26 April 2000 before the Supreme Court, he intended to plead not guilty to all charges and that it was during this period he had his first meeting with his Counsel, Mr Spencer at a time when the appellant's solicitor Ray Finlayson did not turn up. He said Mr Spencer was told that he was dyslexic and that he told Mr Spencer that it would take the appellant some time to read two pieces of paper, which Mr Spencer had given him. Having read the papers the appellant explained the documents to Mr Spencer. 31 In the course of this interview he said that Mr Spencer told him that the Crown case was a circumstantial case and that the case would be difficult as there were a lot of hurdles to overcome. The appellant's evidence was that in answer to Mr Spencer's advice to him that he consider a plea of guilty, the appellant had said he was not going to plead. He said that he told Mr Spencer that he would not "go down" for something he hadn't done. 32 He then deposed that Mr Spencer had told him that Mr Spencer could arrange a deal with the DPP with whom he was in regular contact, and that he should be able to arrange for fifteen years on the top and ten on the bottom, less time served and that Mr Spencer rang the DPP in front of him and Mr Finlayson, and confirmed it there and then. Mr Spencer told him there was a time limit on this "deal". The appellant said he repeated his refusal to plead guilty. He said Mr Spencer told him to think it over and that Mr Spencer had told him that he, Mr Spencer, would be back the next day. 33 The appellant's evidence was that he met Mr Spencer on 28 April 2000, and confirmed what Mr Spencer had said the day before, as to the DPP's agreement about sentence. He then said that Mr Finlayson arrived later and that the appellant had been confused and upset. The appellant said he asked Finlayson why he hadn't contacted the appellant's witnesses and alleged that Mr Finlayson had said that this could be carried out during the trial. He said that Mr Spencer had told him that he would be a fool if he didn't plead guilty and that Mr Spencer had dictated a document to Finlayson, which the appellant said he didn't understand. The appellant said that there was a heated discussion and that he was told by Mr Spencer to sign the paper, which the appellant said was not read back to him. The document was given to the appellant who said he couldn't read it because the writing was joined writing and that he couldn't understand the writing. Mr Spencer and Mr Finlayson had left and told him they would see him in court, after he had signed the paper. 34 On 1 May 2000 the appellant said Mr Spencer saw the appellant alone and that Mr Spencer had said he couldn't contact Mr Finlayson and that Mr Spencer shouted at the appellant, raising his voice, saying that he had the "deal" in writing and that if the appellant didn't plead guilty, the appellant would be given life. After a short interval the appellant said Mr Spencer returned and told the appellant that he had had a meeting with the Judge and the DPP and that they'd confirmed fifteen years "on the top" and ten "on the bottom", less time served. He said Mr Spencer told the appellant that if Mr Spencer couldn't represent him that the appellant would get life and that the appellant would never see his children again. 35 The appellant said that he asked about his witnesses and Mr Spencer told him that Ray Finlayson had not contacted the witnesses and that the appellant would have to plead guilty. The appellant said he had had no choice, other than to plead guilty. He said Mr Spencer arrived back with a woman from another court to confirm instructions, and that he'd gone back to his cell to write a suicide note to his wife, the note being given to Mr Spencer for Mr Finlayson to give to the appellant's wife. 36 The appellant said he pleaded guilty to a crime he didn't do. On 25 August 2000, the appellant said was the next time he met Mr Spencer and that Mr Spencer refused to see the appellant before court and that the appellant had told Ray Finlayson he wanted to change his plea from guilty to not guilty. He said that Mr Finlayson had shouted at him, raised his arms, grabbed the appellant and had told the appellant he would lose the deal. He said that a paper was in the court. The appellant said that a paper was handed to the Judge but that he was told by Mr Finlayson that these were the summing up papers. He was then sentenced. 37 The appellant said that Mr Finlayson and Mr Spencer then refused to see him. The appellant said that he was told by a prison officer that Mr Spencer and Mr Finlayson had told the officer to say that they had left. The appellant said that the one and a quarter page hand written document prepared by Mr Finlayson on 28 April 2000 signed by the appellant did not reflect his instructions. 38 The appellant said that his present legal representative had shown him a piece of paper dated 28 April 2000, with hand written instructions and his signature on the paper and the appellant said that this was not the document given to him by Ray Finlayson, which had been in joined writing not in printed form. This document was exhibited before this court. 39 Mr Spencer gave evidence, by way of Affidavit upon which he was cross-examined before this court as did Mr Ray Finlayson, the Solicitor and Miss Philippa Winston, Solicitor, who was the woman who had been present at the time of the appellant's instructions to Mr Spencer. 40 Mr Spencer's evidence was that he had advised the appellant that there was an extremely strong case against him in respect of each of the charges and that, Mr Spencer proposed to contact the Crown Prosecutor, which he then did concerning the appellant and had a lengthy discussion as to the evidence the Crown Prosecutor proposed to lead. Mr Spencer said that he confirmed his advice to the appellant at the next conference, that a plea of guilty was the only possible way to avoid a sentence of life imprisonment. Mr Spencer denied any suggestion that he could or did arrange a deal with the DPP as alleged by the appellant. 41 Subsequent to this Mr Spencer spoke to the Crown Prosecutor, Mr Newport QC, and to ask if the three Solicit to Murder charges could be placed on a schedule and taken into account on the other charges and that the Crown would not ask for a life sentence and would concur on submission that whilst a life sentence was open to the Sentencing Judge, that His Honour could sentence the appellant to a determinate sentence. 42 Subsequently Mr Newport QC confirmed that he was prepared to proceed in this fashion. Mr Spencer said that in the presence of Mr Finlayson, he later advised the appellant subsequently that this is the only understanding that he could obtain with the Crown. 43 Mr Spencer's evidence was that on 1 May 2000, he attended the Supreme Court at Darlinghurst and spoke to the appellant in the cells with Miss Philippa Winston, Solicitor, to confirm the appellant's instructions. Mr Spencer denied advising the appellant that he would receive a sentence of fifteen years with a ten year non-parole period and denied that he threatened or coerced the appellant. 44 The written instructions dated 28 April 2000, were in hand printed block printing and were acknowledged by the appellant as being signed by the appellant. These instructions confirm the instructions that had been given by Mr Spencer in evidence, those instructions set out what had been arranged between Mr Spencer and Mr Newport QC. 45 Mr Spencer denied that there was any heat in the conferences with the appellant but said that Mr Spencer was firm in his advice. It was not put to Mr Spencer in cross-examination that the discussion alleged by the appellant concerning a fifteen year sentence with a ten year non-parole period actually occurred. Mr Spencer said that he had asked the Crown to open his case in detail before the jury in order that the appellant could have the opportunity of hearing what Mr Spencer had been told as to the strength of the Crown case. This in fact occurred, the opening being complex and lengthy, the case then being adjourned to allow the appellant's legal representatives to discuss it with the appellant. 46 Miss Winston's evidence was that she was present when Mr Spencer spoke of the entering of pleas of guilty and that the appellant had indicated his acceptance of Mr Spencer's advice and that he understood the consequences of the pleas and that the substance of the advice would be put in writing for him to sign. Her recollection was that a number of offences of Solicit to Murder would be taken into account on a Form 1. 47 This Court was advised during the hearing that the Transcript of the Sentencing proceedings shows that there had been a formal tender of documents and that Submissions on Sentence were made. The Solicitor, Mr Raymond Finlayson, on cross-examination on his Affidavit, sworn by him, explained some of his reasons for not calling witnesses for the accused, including the fact that the accused's wife was back in Ireland and that one of the witnesses he sought to call was a prosecution witness, in any event, and the difficulty he had locating an anonymous caller who said he was able to give some evidence but did not contact Mr Finlayson after an initial telephone call. 48 Mr Finlayson confirmed that the appellant had dyslexia. Mr Finlayson did not have notes of the various conversations he had had with the appellant. He did not hear Mr Spencer say anything about fifteen or ten years or any other period of sentence. Mr Finlayson denied that Mr Spencer shouted at the appellant.

The Appellant's Case on Appeal 49 It was put by Mr Horler QC, on behalf of the appellant, that, notwithstanding the written instructions the Court would accept that the appellant had always intended to plea not guilty, as he did the first time that he was arraigned and that he was overborne in his will to maintain his plea of not guilty and that he was entitled to have the trial based on his original instructions. It was not put by Mr Horler QC that the advice which Mr Spencer said he tendered was wrong but that the appellant was entitled to have the case conducted in accordance with his instructions, which Mr Horler QC put were that he was not guilty of the offences. Indeed the advice was clearly correct and very much in the appellant's interest to accept. 50 It was conceded on the part of the appellant that it was relevant that no action was taken by the appellant between 25 May 2000 and August that year to seek to withdraw the plea. It was put to this Court that there were important discrepancies when you look at what Mr Finlayson did or did not do, to comply with the appellant's instructions to call witnesses. 51 As to sentence, it was put that with a man with only a minor record and otherwise good character, the sentence was excessive.

The Law as to Appeals 52 The issue, as to whether, before an appeal might be successful from a conviction entered as a consequence of a plea of guilty, has been variously considered by the High Court and Court of Criminal Appeal. Chief Justice Spigelman in R v Hura (2001) 121 A Crim R 472, summarised the circumstances in which an appeal might succeed after a plea of guilty has been entered: 1. Where the appellant did not appreciate the nature of the charge; 2. Where there was not a free and voluntary confession; 3.That the plea was not really attributable to a genuine consciousness of guilt; 4. Where there was a mistake or other circumstances affecting the integrity of the plea, and where the plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty and in circumstances which indicate that the plea was not attributable to a genuine consciousness of guilt; 5. The plea must be unequivocal and not any suggestion that it is not a true admission of guilt; 6. Or if the person who entered the plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt; 7. The failure to appreciate the nature of the charge through problems with an interpreter. ( R v Iral [1999] NSWCCA 368); or 8. Where advice of Counsel was imprudent or inappropriate and caused a miscarriage of justice R v Wilkes [2001] NSWCCA 97 and R v KCH (2001) NSWCCA 273, involving improper pressure by Counsel.

53 It was further held in R v Meissner (1995) 184 CLR 132, by Brennan, Toohey and McHugh JJ at p 141: "A Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of Justice if the Court does act on such a plea, even if the person entering it is not guilty of the offence". 54 The onus, in this appeal is on the appellant to establish the necessary facts and then to establish that a miscarriage of justice has occurred, R v Bayliss [2002] NSWCCA 11.

Examination of the Evidence on Appeal 55 The difficulty which the appellant faces, notwithstanding the evidence of his dyslexia is that he has signed a written instruction and that his only possible excuse is that Mr Finlayson put a lot of papers in front of him at various stages as he averred in his evidence suggesting that was when it was signed. He also asserted that he was affected by medication but this was medication he was taking all the time and no evidence has been tendered to show that he was likely to be so affected. It was put by the Crown that he sat through the submissions in August and heard nothing consistent with the "alleged deal", which was even alleged to involve the Judge. 56 I accept the evidence called by the Crown. Indeed, I can see no basis for not accepting the clear evidence of Mr Spencer, Counsel and the evidence of Mr Finlayson and the evidence of Miss Winston and the signed identified instructions. It seems to me clear that the appellant was not overborne and that he has not established that fact nor called compelling evidence to that effect. I do not accept the appellant's evidence where it conflicts with that of Mr Spencer as to the circumstances of the signing of the written instructions. On the evidence, therefore before this Court, the appellant has not established any evidentiary basis for the Court intervening with the convictions and in my view, the appeal, therefore, fails.

Leave to Appeal Against Sentence 57 In the light of the evidence as to the circumstances of the case, which have been briefly summarised earlier in this judgment, it seems to me, that notwithstanding his prior good character and the limited number of offences in Australia, that the sentences imposed, taking into account the three matters on the Form 1 and the seriousness of the offences on which the appellant was sentenced, that there is no basis for suggesting that the penalty was manifestly excessive or outside the range. In my view, the sentence was well within the range and indeed not near to the top of the range, even taking into account the entering of the plea of guilty. I would grant leave to appeal and dismiss the appeal on sentence. 58 I would suggest the orders of the Court should be as follows: 1. That the appeal on conviction on both charges be dismissed; 2. That on leave to appeal against sentence, that leave be granted; and 3. That the sentence appeal be dismissed.

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