R v Gadaloff[1999] QCA 286

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 24 of 1999

Brisbane

[R v Gadaloff]

THE QUEEN

v

GARTH MICHAEL GADALOFF

(Applicant)

McPherson JA

Thomas JA

Cullinane J

Judgment delivered 24 September 1999

Judgment of the Court

APPLICATION DISMISSED.

1. THE COURT:  The applicant Garth Gadaloff was on 26 October 1998 convicted in the Supreme Court on pleas of guilty to charges (1) of dishonestly applying to his own use a sum of money belonging to Brisbane City Council, with the added circumstances of aggravation that it exceeded $5,000, and that he was an employee of the Council; (2) that he with Narelle Gadaloff engaged in money laundering contrary to s 90(1) of the Crimes (Confiscation) Act 1989; and (3) that he also engaged in that offence with a named fellow employee. After the applicant had pleaded guilty, Chesterman J heard submissions from counsel and, on the following day 27 October 1998, sentenced the applicant to imprisonment for eight years on count 1, and for four years to be served concurrently on counts 2 and 3. His Honour also sentenced the applicant to concurrent terms of imprisonment for one year on two charges of possessing tainted property, which had with the consent of the applicant been removed from the magistrates court, and to which the applicant also pleaded guilty.

2. On the same occasion, his Honour sentenced Narelle Gadaloff, who is the wife of the applicant, to imprisonment for two years for money laundering, with concurrent terms of one year each in respect of two charges of possessing tainted property, to all of which she had also pleaded guilty on that occasion. Applications dated respectively 28 October and 4 November 1998 (CA 384 and 395 of 1998) by the applicant and his wife for leave to appeal against those sentences were heard and dismissed by the Court of Appeal on 23 November 1998.

3. On 22 January 1999, the applicant lodged the present application (CA 24 of 1999) dated 5 January 1999 for an extension of time within which to appeal against his conviction on the counts and charges on which he was arraigned and had pleaded guilty on 26 October 1998. The application had already been adjourned on three occasions before coming to a hearing in this Court on 7 September 1999, when the applicant appeared in person. On that occasion, affidavit material was relied on and evidence was given by Mr Andrew Boe, of Boe & Callaghan, who were the solicitors for the applicant until the sentence appeal was disposed of in November 1998.  The hearing of the application was not completed on 7 September 1999 and so was adjourned to 15 September, when the applicant was cross‑examined by Mrs Clare for the Crown.

4. At the outset, the application by Mr Gadaloff is confronted by several difficulties of substance. Not only is it nearly three months out of time, but the explanation offered for the delay is, to say the least, not at all compelling. For reasons that he gives, he says "my thinking wasn't as clear as it could have been. I accept responsibility for this, but ask that some leniency be accorded to me in the circumstances". It is a factor that can, however, adequately be considered in conjunction with two other matters that arise on the application itself in conjunction with its prospects of success or otherwise: cf R v Tait (CA 210/1998; 6 Oct, 1998). They are that the applicant, having pleaded guilty to the charges against him, now requires leave of the court to withdraw his pleas to those charges; and that, coming as the appeal does after his conviction on such pleas, the onus lies on him to establish that a miscarriage of justice took place when the court accepted and acted on his pleas by convicting him at the hearing on 26 October 1998. The essential question, as Lee J said in R v Chiron [1980] 1 NSWLR 218, 241, is whether the entering of the plea of guilty should be regarded, in all the circumstances, as attended by such unfairness as to warrant a new trial.

5. It is with the last of these matters that this application is primarily concerned. In Meissner v The Queen (1995) 184 CLR 132, 141, Brennan, Toohey and McHugh JJ said:

"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 a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

Comparable statements appear in the reasons for judgment of the other two learned Justices of the High Court in that case. See 184 CLR 132, 148 (Deane J) and at 157 (Dawson J). Each of their Honours recognised that a plea of guilty which is the product of intimidation, duress, improper pressure or improper inducement, or harassment is not a free and voluntary plea on which a court may properly act. See Meissner (1995) 184 CLR 132, 141, 143, 148, 157. But, because the law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as "the most cogent admission that can be made" (Sagiv (1986) 22 A Crim R 73, 81), it is necessary that a miscarriage of justice be demonstrated before leave is granted to withdraw such a plea.

6. From observation of the applicant in the course of this hearing and from his antecedents (which include a period at the Police Academy, followed by a lengthy term of employment by the Council as head bulk cashier), he is a person not lacking in intelligence or acumen. It is not suggested that the present case is one in which the applicant was mistaken as to the nature of  the charges to which he was pleading, or as to the character or significance of the pleas of guilty he was entering. It is a case in which he asserts that intimidation or duress was exercised over or exerted upon him principally, although not exclusively, by his own lawyer Mr Boe. In these circumstances, the applicant is confronted by some further and particular statements of principle in the reasons of their Honours in Meissner v The Queen. Argument or advice, said Brennan, Toohey and McHugh JJ (184 CLR 132, 143):

"... that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a full and voluntary choice concerning his or her plea to the charge."

In the words of Deane J (184 CLR 132, 149):

"a degree of pressure which would be quite legitimate if exerted by an accused's own lawyer acting solely in the accused's interests (eg in a 'plea bargaining' or 'sentence indication' situation) may be completely unacceptable if exerted by a stranger acting for a collateral and selfish purpose of his or her own."

Likewise, according to Dawson J (184 CLR 132, 157):

"... merely to reason with the accused, pointing out the advantages of pleading guilty and the disadvantages of pleading not guilty - even if the advantages or disadvantages extend beyond the legal consequences - will not amount to an attempt to pervert the course of justice."

7. With these principles and considerations in mind, we return to the facts of the matter in hand. While, as was said in Meissner (184 CLR 132, 141), it is no doubt true that the court may, without miscarriage of justice, act on a free and voluntary plea of guilty even if the person entering it is not in truth guilty of the offence, the strength of the case against the accused is nevertheless relevant in deciding whether it, rather than any alleged intimidation, duress, or other improper influence, was the real motive for entering that plea.

8. The transcript of the submissions at the sentence hearing before Chesterman J contains an account of the material on which the prosecution relied. Those submissions were, of course, made only after the guilty pleas had been entered; but it is worthy of note that the applicant, who was of course present throughout that hearing, ostensibly made no protest or attempt to contradict or dispute any of them. It is principally from the court record of those proceedings that the primary facts referred to here are derived. The applicant was first employed by the Council in about 1993. In 1994, it was noticed that revenue from parking meters was, without apparent explanation, undergoing fluctuations and declining in amount. Income from that source was received in the form of cash, which was collected from the meters and transported under conditions of strict security for counting and banking to a central Council office in George Street. There the applicant as the head bulk cashier had custody of the keys which permitted access by members of staff engaged in counting the money collected. It is said to have been received in daily amounts as large as $750,000, although this figure is disputed by the applicant, who claims it was much less than that. Other possibilities having been excluded, Council investigators began in 1996 to focus on the fate of the money once it arrived at the central office. By 1997 they were secretly weighing and counting the money on and after its arrival, with the result that significant discrepancies were observed in the amounts received compared with amounts that were later counted. Whatever the precise amount received, it appeared to be less when later counted. A surveillance camera was installed, by means of which the applicant was on one or more occasions observed at an early hour of the day entering and then leaving the counting room with bags of money.

9. Attention then turned to the applicant's life style, income and assets, which were found to exceed by a substantial margin his Council salary of some $40,000 pa, which was in fact being wholly applied in paying the loan on his house. Mrs Narelle Gadaloff was in paid employment at the time, but her own income was not such as to account for their standard of living or their wealth. Further investigation disclosed the existence of land and properties purchased in the name of the fellow employee mentioned in count 3, who has also been charged with offences arising out of the applicant's activities. On 22 August 1997 a search warrant was executed on the applicant's Brisbane home. While that search was being carried out, the applicant arrived home. A search of his car at the time revealed some $7,500 in bank notes in a Council envelope in his car. The applicant declined to answer questions on the subject. Three days later a search was conducted of safety deposit boxes held in the maiden name of the applicant's wife. They were found to contain a total of $787,257 in cash, which was arranged in bundles of $10,000 or $20,000 in Brisbane City Council envelopes. At the time that search was being conducted, Mrs Gadaloff arrived with a view to gaining access to the boxes. Ultimately an assessment was made of all the money and properties traceable to the applicant, which placed its total value at some $1.9 million. This included an amount of some $200,000 or more deposited in a Swiss bank account, which the applicant later arranged to have returned to Australia. In civil proceedings in the Supreme Court (action no 7649 of 1997) the Council on 27 August 1997 obtained an injunction against the applicant and his wife, and later his fellow-employee, restraining dispositions of property in their names; and in about May or June 1998, indictments were presented or charges laid against the applicant and his wife. Committal proceedings followed in January 1999.

10. It was in about June 1998 that the applicant sought advice from Mr Boe of Boe & Callaghan, which is a firm of solicitors specialising in criminal matters. He had previously been consulting Gilshenan & Luton, solicitors, who had advised him to plead guilty and were negotiating toward such an outcome. He came to Mr Boe for a "check" opinion on their advice; but Boe declined to act for the applicant and his wife unless the file and instructions were transferred to his firm, which was done on about 24 June 1998. He also made it a condition of his agreeing to represent the applicant that funding be provided for that purpose.  Boe set out to obtain, and at some stage succeeded in obtaining, the agreement of the Council to the release of some of the funds "frozen" by the injunction to provide for legal representation. An amount of some $10,000 is referred to in the material before us. It was applied for various purposes, which included obtaining opinions from counsel, perusing the file and the evidence, conferring with the applicant and Mrs Gadaloff, and obtaining psychiatric advice. In an attempt to acquire funds with which to defend the prosecution, an application was made under the Crimes (Confiscation) Act 1989 for an order under that Act to meet legal expenses properly incurred. The Council was naturally not keen to see the frozen property substantially diminished in payment of such expenses. It and the Crown were prepared to consent to the release of funds only if a plea of guilty was forthcoming, and not otherwise. In this, they may both have been influenced by s 133 of the Criminal Code, which makes it an offence to compound a crime.

11. It may be accepted that Mr Boe was initially enthusiastic about the prospects of defending the charges, and of obtaining funds for doing so, or so he led the applicant to believe. Having viewed the video film of the applicant which the Council had obtained, he at first formed the opinion that it failed to establish the guilt of the applicant. The real problem for the defence, as perceived by Boe, was, however, to account for the "assets-rich" position of the applicant and his wife. Unless some reliable alternative explanation could be offered for the apparently disproportionate wealth of the applicant or his wife, a jury would, he believed, readily reach a conclusion that the applicant had been misappropriating Council parking meter money. The first question to be considered was whether evidence of their wealth (including the sum of nearly $800,000 in cash in the security deposit boxes) was admissible in the prosecution case against the applicant and his wife, and, on that question, Mr T D Martin SC was briefed to advise. He did so orally in the first instance, and then confirmed his advice in a written opinion dated 1 October 1998. In it, he advised that the existence of the Gadaloffs' assets including their "enormous cash reserves", as he described them, compared with their relatively meagre salaried income, was "admissible as circumstantial evidence and ... highly probative". Mr Martin went on to say that, "in the absence of an explanation in evidence at trial as to the legitimate source of the cash and assets of Mr and Mrs Gadaloff, I believe it is likely that a Weissensteiner direction would be given" (Weissensteiner v The Queen (1993) 178 CLR 217). By that, counsel said he meant that failure to explain, in circumstances where an innocent person would be expected to offer an explanation, is according to that decision capable logically of being treated as conduct proving or tending to prove guilt. Here, Mr Martin added, if an explanation of the source of the cash and assets was embarked upon, the explanation would need to be convincing to a jury, and would require "cogent independent and/or documentary evidence" in support of the explanation. Otherwise, if the explanation were not convincing, a jury would readily convict.

12. It can scarcely be doubted that Mr Martin's advice on this point was correct. Therein lies the applicant's fundamental problem. He did in fact proffer to his legal advisers an explanation of a kind for his extensive assets. Mr Gadaloff is, he claims, a direct descendant of an ancient and substantial Russian family, of whom a member had settled in Australia before the Revolution of October 1917. There is no reason to doubt his claim to this effect. The Gadaloffs were wealthy merchant-traders and entrepreneurs who were at one time active in the Krasnoyarsk district of Siberia. According to an article or articles by L Kiselyov published in Krasnoyarskiy Rabotchiy in 1990, the family can be traced back at least as far as the early nineteenth century. They formerly owned land, buildings, gold mines, steamships and department stores in the province of Yenisei, and were prominent in government and social affairs of the region. Unfortunately, this inevitably brought them to the attention of the Soviet secret police in the area in question. In and after 1923, OGPU, inspired (as L Kiselyov says it was) with the "the punitive syndrome", arranged for members of the Gadaloff family to be tried on trumped up charges, and then either shot or condemned to prison camps as spies or counter-revolutionaries and agents of capitalist reactionaries. Others disappeared without trace. The remaining members of the family fled to Leningrad (as it then was), where they survived the German siege of 1941 to 1943, and where some of them still reside.

13. In November 1991 the applicant visited Germany, where he claims to have met his aunt Tamara Gadalova, who has since come to an untimely end, possibly through assassination, as the applicant is inclined to suspect. She gave him, or so he claims, a large sum in money. According to his account of it in cross-examination before us, it was a sum of about $1.3 million in US dollars, which he packed in a trunk and brought back to Australia. The applicant was extremely vague about the source of the money. There is at least a suggestion in the written material that it may have been part of an amount paid to the Gadaloff family by way of restitution of property taken from them in the past. However, in cross-examination in these proceedings, the applicant was inclined to say that the money might have had its sources in assets which the family had succeeded in retaining throughout the communist period, or possibly shares held in companies abroad. He had, he said, not inquired too closely into its origins. In any event, the money received by the applicant was intended for distribution among members of the Australian branch of the Gadaloff family. Instead, being of a "greedy" disposition as the applicant describes himself, he kept it for himself. It was, he says, the real source of the cash and other assets in Australia that were traced by the Council or police investigators to the applicant and his wife. It was also the reason why the applicant was intent on keeping his wealth and its origins a secret from his Australian relatives. Surprisingly, however, he said that his wealth was well known to his fellow-employees at the Council.

14. Whatever the source of this US $1.3 million, Mr Gadaloff claims to have brought the money back with him in a trunk from Frankfurt to Australia where he kept or invested it in the manner described. Unfortunately he has no record or other evidence of his having received it in the way he claims. His aunt is now dead; his cousin Julia cannot be located; and he now has nothing to show that he received the money in Germany. What the applicant said he at one time had in his possession were hidden records of the conversion of US into Australian dollars. Regrettably, he destroyed all those records when the police began searching his house. All he was left with, or has produced to his solicitor or this Court, were copies of telephone statements recording many international calls to Russia and many other places abroad, including Britain, Austria, Germany and elsewhere. These statements bear dates from 1990 onwards. Of course any member of the public who is prepared to pay for it is free to place telephone calls to almost anywhere in the world. The applicant's telephone statements fall well short of being evidence of the kind Mr Martin SC had in mind when, in his advice on 1 October 1998, he referred to cogent independent or documentary evidence in support of the applicant's explanation of his wealth or its source. Moreover, according to the applicant's account of it, he exchanged the money for Australian dollars over time at various banks in Brisbane and elsewhere. One would have thought it would not have been impossible to locate banking records of exchange transactions having been carried out at banks which the applicant said he attended for that purpose; but he made no inquiries about that possibility. It is difficult to accept that any rational juror would have been persuaded to accept evidence of telephone calls being made to Russia and elsewhere in 1990 or 1991 as sufficient to substantiate the applicant's explanation of his wealth, or even to raise a reasonable doubt that the Council parking meter revenue was not its real source. This is in effect what Mr Boe proceeded to tell the applicant and his wife.

15. There was a conference at the offices of Boe & Callaghan on the afternoon of 1 October 1998. It was attended by Mr Boe, his secretary, a Ms Louise Hume, who is an experienced solicitor then in the employment of the firm, as well as the applicant and his wife. By that time Mr Boe already had Mr Martin's opinion, as well as written advice from Mr Peter Callaghan of counsel dated 28 September 1998, which reviewed the prospects of the application for an order that provision be made out of the "frozen" funds. Mr Callaghan's advice about the prospects of success on the application under the Act of 1989 was not at all optimistic. The injunction made in no 7649 of 1997 had been made under the general law and not under that Act.  However, he considered it possible that the applicant and his wife might succeed in obtaining a relaxation of the restraining order to allow access to an amount equivalent to the "equity" in the matrimonial home, which the applicant claimed had been acquired from independent income without using any money taken from the Council. In addition, Mr Boe had by that time read the police brief in the prosecution case against the applicant, and had been negotiating with the Council and the Crown about the future course of proceedings including the fate of the civil action against the applicant.

16. There is a diary note ex AB6 of the conference that took place on 1 October 1998.  According to that exhibit, Boe began by summarising the evidence as it appeared from the police brief against the applicant and his wife. He referred to Mr Martin's advice and to the need for them to make a decision on that day as to the course they would be taking. The matter was listed for mention in the Supreme Court on the following day. He said that, in order to defend the prosecution, they needed to provide documents that could prove where the money came from as well as independent evidence from witnesses. There was, he advised, at present no supporting evidence in the documents provided. If the applicant and his wife went to trial, Mr Boe said he considered they would be convicted. He explained that, if they went to trial, a head sentence of 10 years could be expected for the applicant without any recommendation for parole, and that the sentence for Narelle Gadaloff would be three to five years with no parole recommendation instead of two and a half to three years. If they pleaded guilty there was a chance they would keep the house, and a "slim" chance of keeping Narelle out of gaol with a suspended sentence. In the course of the conference, which was interrupted several times to enable the Gadaloffs to go away and consider their position, Boe telephoned Mr Fuller of counsel for the Crown, who confirmed that the prosecution would be seeking a 2½ to 3 year sentence in the case of Mrs Gadaloff with no early recommendation for parole. He was asked to confirm this in writing and he did so in a facsimile which was accompanied by a written statement from the Council to the effect that if the Gadaloffs "entered guilty pleas tomorrow" and proceeded promptly to sentencing, the Council would not request Mr Fuller to seek a custodial sentence in respect of Mrs Gadaloff. The Council would be prepared to settle the civil proceedings, but on terms that the claim be admitted and any interest of the applicant and his wife in their extensive property be surrendered "save for the matrimonial home at 29 Denver Road".

17. According to AB6, the Gadaloffs said they were going to plead not guilty and use the amount of $60,000 to $80,000 represented by the equity in the house to fund the trial. Boe again went through with the applicant his account of what had been done with the money from the Russian relations and the absence of documentation recording its exchange in Australia. In the end, Boe said there was not one piece of material that could corroborate the explanation, and that a jury would not believe it. Boe told him that he himself thought the applicant was not telling the truth. The conferences became heated, and Boe asked them to go away again and rethink their decision. Apparently at some later stage, said to have been "a day or two" before the sentence hearing, Ms Hume took a statement from the applicant, which became ex 1 in the proceedings now before this Court. It is typed and, according to Boe, bears the handwritten corrections of Ms Hume, who is said now to be overseas. In it, the applicant admitted to having stolen an amount of some $1.3 million from the Council. The statement explains in some detail the system he adopted, which was not precisely the method that the Council assumed he had used. He also supplied particulars of the "frozen" property and the values he placed upon it. He claimed that some of his assets had been derived from successful gambling, which he said made up the shortfall between his assets and what was taken from the Council.

18. The statement is not signed, but Boe claims that he went through it with the applicant, who confirmed it with him. It is right to say at once that the applicant denies having done so, and claims that ex 1 is a fabrication. It was not produced until the hearing on 7 September 1999. At the same time, he explained to us that anything Boe referred to as having been discussed with him about that admission of guilt "is irrelevant as it was a combination of grandstanding inaccuracies and lies formulated at risk prevention at sentencing". By this, he appeared to mean that the statements in ex 1 were designed for use at sentencing with a view to showing just how lax the Council system for protecting the parking meter money was. He also challenges the accuracy of the note ex AB6 recording details of the conference on October 1. Within a few days after that conference, the Council "reneged" on the arrangement with respect to the matrimonial home and insisted on its being transferred to it. The applicant was, naturally enough, incensed when informed of this development and again had thoughts of pleading not guilty. Boe had, however, previously made it clear that neither the Crown nor the Council would be bound by their written statements of intention made on 1 October. In addition, he had by then signed a document ex AB7 dated 2 October 1998 instructing Boe & Callaghan that he wished to plead guilty to the charges on the indictment against him, as well as another document ex AB8 of the same saying that he intended to plead guilty to the tainted property charge and for that purpose wished it to be transferred from the magistrates court to the Supreme Court.

19. Mr Boe appeared for the applicant when the sentence was mentioned in the Supreme Court on 2 October. For sentencing purposes, it was, as he was aware, not unimportant that the outward impression be maintained that the applicant and his wife were not seriously contemplating pleading not guilty or proceeding to trial. As he claims to have pointed out at the conference on 1 October 1998, the applicant had already had 18 months in which to consider his position. The adjournment to 26 October, when the sentence hearing took place, gave him a further 24 days within which to do so. For his part, the applicant's problem was that he lacked the funds to pay the legal expenses of conducting a six week trial. Boe's estimate before us of the cost of doing so was of the order of $80,000 to $120,000. There was no source from which the applicant could provide funds of that magnitude except perhaps his "equity" in the matrimonial home, and the prospect of using it for that purpose finally disappeared when the Council later "reneged" on its earlier indication of intention to let them keep the house. In any event, there was, as Boe pointed out at the conference on 1 October, no point in incurring the expense of a trial if in the end they would be found guilty, as Boe advised they would be. They would simply lose the house together with the advantage, such as it was, of claiming the sentencing benefit of having co‑operated by pleading guilty. As it was, his predictions on 1 October about the likely sentence that would be imposed on pleas of guilty proved in the end to be remarkably accurate.

20. The applicant submitted that the Council was never in a position to prove how much money had been taken and by whom. There were, he said, others who were helping themselves to parking meter money at that time.  The insuperable obstacle in the way of conducting a successful defence nevertheless remained the overwhelming difficulty of satisfactorily explaining the very considerable assets in the possession or power of the applicant and his wife. There must be few jurors or anyone else in Australia who have been paid $1.3 million in cash by their aunts. Before us, the applicant suggested that it was the duty of the solicitor to assemble the evidence required to verify the applicant's assertion that he had received the money from his Russian relatives. Plainly, however, the solicitor must, at the very least, be told where to look and what to look for. There is no indication that anything was ever given to other members of the Gadaloff family as their share of the family fortune. Nothing tangible by way of dates, places or occasion was ever provided to Mr Boe. What is perhaps more to the point, no details were given of banking institutions where or when the amount of US $1.3 million was changed into Australian dollars. It was not part of the duty of the solicitors, unless instructed and paid to do so, to make inquiries at every bank across the country to find out if they had any record of  the applicant or anyone else having exchanged currency there over the years in question. The only bank which the applicant specifically identified as a place at which he engaged in some of the currency exchanges was the Commonwealth Bank in the Queen Street Mall, Brisbane. He made no inquiries there to see if he was remembered as having exchanged any amounts, because, he said, no one would have remembered his having done so. The exchange process was, he claimed, carried out in amounts always of less than $10,000 because the applicant did not want the government "snooping around" his business, and it involved using banks as far afield as Hobart and South Australia. However, the applicant did not explain the methods used to transmit the money to those places beyond saying that there were records of "dozens" of telephone calls having been placed by him for "years and years" about exchange rates. In evidence, before us, he seemed unwilling to condescend to detail. He said the task of inquiring whether the banks with which he had done business had retained any records of such transactions just seemed to him to be "insurmountable". If that was so, he could hardly have expected his solicitors to undertake it. His affidavit material on this application is replete with detail about alleged wrongdoings on the part of the Council and its employees, but scant of particulars about the money from his Russian relatives, its origins, and the process of exchanging into local currency in Australia.

21. The principal problem therefore always remained that there was nothing but his unsubstantiated word to support the claim that his and his wife's considerable wealth, including the amount in cash in the safety deposit boxes, had come to him from his overseas relatives and not from Council parking meter revenue. His wife, he said, knew little or nothing about its source. It is difficult to escape the conclusion that his explanation is untrue; but, whether or not it is, the function of his solicitors was to advise him and Mrs Gadaloff about the prospects of such an explanation raising in the minds of an ordinary jury a reasonable doubt as to the real source of those assets. Both Boe & Callaghan and Gilshenan & Luton advised the applicant that it would not; or, in other words, that if he proceeded to trial, he and his wife would be found guilty. If that happened, they would lose much of the advantage otherwise expected to accrue for his co-operation in arranging to transfer the money from Switzerland (ex 2) and from their pleas of guilty to the charges against them.

22. Turning to the ultimate issue in the application before us, it is whether the applicant was prevailed on to enter pleas of guilty to the charges against him by duress, intimidation or threats against him. His position on 2 October 1998 when he signed exs AB7 and AB8 was obviously an unenviable one. Despite what may have been over-confidence on the part of Mr Boe when the applicant first consulted him, the applicant by then had advice supported by senior counsel's opinion that, without a persuasive explanation supported by independent evidence of the source of his assets, a jury would be likely to find him and his wife guilty of the offences changed. It was still open to him to risk a trial by pleading not guilty; but that would have been extremely costly. Boe was not prepared to undertake a trial, estimated to take six weeks, at the rates payable by Legal Aid, even assuming assistance could be secured from that quarter. The applicant and his wife had no "free" assets apart from those subject to the injunction in action no 7649 of 1997, together with superannuation said to be due to him (which was no doubt also under Council control), and the equity in the matrimonial home. As to that, Boe advised the applicant and his wife at the conference on 1 October 1998 that they were better off aiming to retain the house rather than investing the proceeds of its sale in the legal costs of a fruitless trial. Whatever the applicant's true financial position, he never at any time offered to produce the funds that would be needed to pay counsel and solicitors to conduct what on any view must have been a lengthy trial on his or her behalf. There is little doubt that, had he demonstrated that he was able to do so, Boe & Callaghan, or some other solicitors, would have been prepared, if indeed not ethically bound, to undertake his defence and to brief counsel for that purpose. Even the applicant does not suggest they were bound to act for nothing.

23. Boe denied that he insisted or told the applicant that he must plead guilty or that, if he did not, he would cease acting for the applicant and his wife. We consider we should accept his evidence on this and other matters. It accords with the probabilities of the matter. He may well have said that his firm would not act for the applicant and his wife in conducting their defence to the criminal proceedings unless paid, or assured of being paid, for doing so. That may have left the applicant with little option but to plead guilty; but it falls well short of duress or intimidation of the kind that must be established to invalidate a plea of guilty. The applicant could, it is true, have pleaded not guilty and elected to represent himself at the trial. Had he done so, the probability, bordering on near certainty, is that he would have been found guilty, as, indeed, would also have been the likely result if he had been legally represented at the trial. He and his wife would then have forfeited the prospective benefits, modest though in retrospect they appear to have been, of entering pleas of guilty to the charges against them.

24. Boe's advice to his clients at the conference on 1 October 1998 was no doubt strongly worded and at times (as he admitted) heatedly expressed; but we are satisfied that it did not go beyond reasoned advice, or the degree of pressure which is said to be legitimate if exerted by a lawyer acting solely in the interests of his own client (Meissner v The Queen (1995) 184 CLR 132, 143, 149). There is no reason to suppose that ex AB6 does not reflect the substance of what was said at that conference. It is noteworthy that the applicant left the conference on that day saying that he was not prepared to plead guilty, and it was only on the next day that he signed exs AB7 and AB8. From then until the plea was entered on 27 October 1998 he had ample opportunity to change his mind about what he would do. Despite his misgivings, or the distrust he claims he then felt about the integrity and competence of Boe, he continued to instruct him: see exs AB-A1 and AB-A2. On 4 November 1998 he signed a notice of application for leave to appeal against sentence. For that purpose, his family and that of his wife paid Boe & Callaghan a further $10,000 to cover the costs of his and her application for leave to appeal and for an application by her for bail pending appeal. Exhibit AB-A2, dated 8 November 1998 is a letter from the applicant addressed to "Dear Andrew" and begins by thanking Boe "for your tenacity towards the BCC in hammering out some deal acceptable for my family". It and his conduct in pursuing that application is inconsistent in its terms and tone with the applicant's current evidence and condemnation of his solicitors' actions on his behalf. By contrast, it hardly seems likely that any solicitor would, for the sake of imposing on a single client, have risked his professional future by fabricating a statement in the terms of ex 1. The applicant's comments on that document have already been noticed.

25. Exhibit AB-A2 does, however, disclose the applicant's intense hostility toward the Brisbane City Council. Such an attitude is understandable having regard to the alacrity with which the Council withdrew its earlier expressed statement of intention to except the matrimonial home from the assets it claimed to retain in satisfaction of its civil claim in action no 7649 of 1997. It did so soon after Boe communicated the applicant's intention of pleading guilty to the offences charged. Even after it had done so, however, the applicant had ample opportunity to change his previously declared intention of pleading guilty to the charges against him. Despite knowing what the Council had done, he pleaded guilty to all of the charges on which he was arraigned on 26 October 1998. We are satisfied that he did so in the exercise of a free choice in his own interests. There is no reason to doubt that heavy financial and family pressures were operating on him and causing him stress at the time. Being under stress or tension may, as Lee J said in R v Chiron [1980] 1 NSWLR 218, 241, of itself induce a desire to confess misdeeds which might otherwise be held in check; but the applicant's pleas of guilty on 26 October were, on the impression we have formed of the evidence, not induced by any intimidation, duress, improper pressure or harassment by his solicitors or anyone else, but were the product of his realising that he was, or would be proved to be, guilty at trial. It is true that he also complained of two or more occasions on which he was either threatened or assaulted in the period after being dismissed from his employment; but there is no evidence capable of justifying his suspicion that the Council was responsible for those actions. Nor is there any reason for suspecting that those incidents materially influenced his decision to plead guilty on the date in question. If, as he believed, he still held a "dangerous" card against the Council, it was one that he did not play, or that failed to deter the prosecution.

26. In the result, we are not persuaded that the applicant's pleas of guilty involved a miscarriage of justice, or were attended by such unfairness as to warrant an order for a new trial. He should not be permitted now to withdraw them. It follows that the application for an extension of time within which to appeal or to obtain leave to withdraw those pleas should be refused.

27. The application should be dismissed.