R v Sivov [2008] VSCA 100

25 The application for extension of time in which to lodge notice of appeal was granted by the Acting Registrar of the Court of Appeal on 29 November 2007. That application had been opposed by the Commonwealth.

26 Although a plea of guilty has generally been regarded as an admission of all the necessary elements of an offence, that is not necessarily the end of the matter.

27 The question of whether leave will be granted depends upon the application of some well established principles.

28 Those principles were recently set out in R v Coffey where Callaway JA said:[1]

The ground of appeal against conviction reflects a line of cases beginning with R v Forde,[2] in which the judgment of the English Court of Criminal Appeal was delivered by Avory J. His Lordship said:

A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.[3]

Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice ... The authorities are discussed in R v Tait,[4] R v Parsons[5] and R v El-Kotob.[6] There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty.[7]

29 The cases of R v Coffey and R v Tait were cases where it fell to be considered whether or not the offence, pleaded to, was one known to the law.

30 It is not suggested by the applicant that this is such a case or that it is a case where he pleaded guilty because he did not understand the nature of the charge and did not intend to plead guilty to it.

31 He attempts to bring himself under the heading of miscarriage of justice. In the circumstances, that must mean that to let the conviction stand would be a miscarriage. Such circumstances have been described as, 'extreme not just extraordinary'.[8] In Victoria, in the Court of Criminal Appeal in R v Murphy, Herring CJ and Adam J said:

A plea of guilty duly recorded provides the strongest evidence of guilt. Accordingly, although this Court may grant leave to appeal on any ground which appears to it "to be a sufficient ground of appeal" (s567I of the Crimes Act), on principle one would expect that in such a case leave would be refused save in exceptional circumstances where the plea of guilty itself has been induced by material mistake or the like. And so it has been held in decisions both in England and in this State. In R v Forde, [1923] 2 KB 400, at p.403; [1923] All ER Rep 477, Avory, J, put the matter thus: "A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged." This statement of the matters relevant to such an appeal was approved and applied by our own Full Court in R v Stewart, [1960] VicRp 16; [1960] VR 106. While no doubt there are dangers in fettering such a wide discretion as is conferred on this Court by s567I by the formulation of precise rules or tests to meet all circumstances, we consider that the rules as formulated in R v Forde, supra, will be found to provide a sound guide to be followed in most, if not all, cases. [9]

32 It is not suggested in this case that the applicant did not appreciate the nature of the charge or that upon the admitted facts he could not be convicted.

33 The above statement from R v Murphy makes it abundantly clear how rare intervention by this Court based upon 'miscarriage of justice' will be.

34 In this case the sequence of events is of significance:

1. The applicant was present when a search warrant was executed at Room 17 of the Airport Motel and Convention Centre in Altona, Victoria on 31 January 2003.
2. The applicant was arrested on 30 July 2004 and charged with 38 charges of obtaining property by deception and 6 charges of attempting to obtain property by deception.
3. After a contested committal at which a number of witnesses were cross-examined, he was committed on all charges on 25 August 2005.
4. In September 2006 the applicant was arrested on an unrelated matter and has been in custody since.
5. His bail was revoked on 20 November 2006 by consent.
6. There were a large number of adjournments of the trial but on 15 April 2007 the applicant made an offer to plead guilty.
7. On 16 April 2007 he was arraigned and pleaded guilty to one count each of obtaining and attempting to obtain property by deception. The plea hearing was adjourned until 4 May 2007.

35 The applicant in his written submissions complained that his solicitor and counsel had not followed his instructions. He said that he had pleaded guilty because he had been promised that he would only be required to serve an additional six months.

36 He also complained that he had been denied access to material which would demonstrate his innocence. In his oral submissions in that regard he said to the court that the companies with which he was involved had been trading and that the companies at least were entitled to refund of the GST.

37 As will be observed, the applicant had exercised a number of rights. He was at large between 30 July 2004 and September 2006. In that time he would have had access, if he wished, to the hand up brief and depositions.

38 I have read the whole of the material provided. The only dissatisfaction expressed by the applicant was at the mention of 15 May 2007. Although he did raise the question of changing his plea, he appeared to be more concerned about the way in which the plea had been conducted.

39 There is nothing which emerges from the material from which I would conclude that he was wrongly convicted.

40 As I have already pointed out, the 'agreed statement of facts' was read in open court. Counsel acting for the applicant did not disagree with anything which was said or that the 'agreed statement of facts' should not be treated as such.

41 The process by which the applicant came to plead was one in which he played a significant part. He had the opportunity to consider matters overnight. He was arraigned twice and pleaded guilty twice. The effect of his plea was that 44 offences alleging a total of approximately $380,000 was reduced to two offences involving $226,531. That is, he had a great deal to gain from it. The mere reduction of the number of charges from 44 to two speaks for itself. When the applicant first pleaded guilty on 16 April 2007, the amounts in the two counts totalled $216,147. On 4 May 2007, this amount was amended to the final amounts. After consultation with his counsel, the applicant was rearraigned and again pleaded guilty.

42 The fact the plea was arrived at after negotiation between the applicant and the Crown is not without force. O'Bryan AJA observed in R v El-Kotob:

Further, for this Court to now allow the appellants an extension of time within which to make application for leave to appeal against conviction on counts 2 to 5 and to allow those applications and set aside the convictions recorded against each of them would amount to a miscarriage of justice against the Crown, in my opinion. The appellants, having entered upon an understanding, arrangement or agreement with the Crown, in the circumstances outlined, are bound thereby. To decide otherwise will have the undesirable effect of undermining the plea bargain process, for the Crown will be wary in the future of not proceeding on all available charges lest in this court an appellant will seek to resile from their agreement.[10]

43 The applicant prepared an amount of material and made submissions before us. Making due allowance for his lack of legal training and education generally, he seemed not an unintelligent person and he understood the concepts involved in the case. He did not strike me as being at all likely to be the sort of person who would plead guilty to offences he had not committed. He seemed much more likely to be the sort of person who would enter into an agreement from which he would gain advantage. That is exactly what happened in this case. His understanding of the process is well demonstrated by his decision to abandon his application for leave to appeal against sentence.

44 This is not one of those rare or exceptional cases which would justify the intervention of the Court after a plea of guilty.

45 I would refuse the application for leave to appeal against conviction.

[1] [2003] VSCA 155; (2003) 6 VR 543, 545-6.

[2] [1928] 2 KB 400.

[4] [1996] VicRp 48; [1996] 1 VR 662, 665-6.

[5] [1998] 2 VR 478, 482-3.

[6] [2002] VSCA 109; (2002) 4 VR 546, [78]-[89].

[7] R v Liberti (1991) 55 A Crim R 120, 122.

[8] Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, 539 (Spigelman CJ).

[9] [1965] VicRp 26; [1965] VR 187 (citations in original).

[10] [2002] VSCA 109; (2002) 4 VR 546, 567- 8.