Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Vella v R; Siskos v R [2015] NSWCCA 148 Hearing dates: 15 May 2015 Date of orders: 19 June 2015 Decision date: 19 June 2015 Before: Gleeson JA at [1] Hidden J at [11] Beech-Jones J at [13] Decision: In the matter of Vella v R (2012/179521): (1) The applicant be granted an extension of time to appeal her conviction and to apply for leave to appeal against her sentence up to and including 3 February 2015; (2) Leave to raise grounds 5, 6 and 7 of the conviction appeal be granted; (3) Leave to raise grounds 1 and 4 of the conviction appeal be refused; (4) The appeal against the appellant's conviction on 28 October 2013 be dismissed; (5) The applicant be granted leave to appeal against the sentence imposed on her on 4 April 2014; and (6) The appeal against the sentence imposed on 4 April 2014 be dismissed. In the matter of R v Siskos (2012/179550): (1) The applicant be granted an extension of time to appeal his conviction up to and including 21 April 2015; (2) Leave to raise grounds 2 and 3 of the conviction appeal be granted; (3) Leave to raise ground 1 of the conviction appeal be refused; (4) The appeal against the appellant's conviction of 28 October 2013 be dismissed; (5) The applicant be granted leave to appeal against the sentence imposed on 4 April 2014; and (6) The appeal against the sentence imposed on 4 April 2014 be dismissed. Catchwords: APPEAL: conspiracy to defraud - insurance company – life insurance policy over second applicant's life – first and second applicant agreed to obtain policy and that second applicant would commit suicide – first applicant ultimate beneficiary – second applicant did not commit suicide – fraud lay in obtaining policy dishonestly – concealed facts they had a duty to disclose. CONVICTION APPEAL: unreasonable verdict – no submissions in support – evidence of agreement very strong – alleged failure of trial judge to give directions about admissions and fact that one of the applicants was alive – no such directions sought or required – Criminal Appeal Rule 4 applies – complaint that counsel "flagrantly incompetent" in not raising good character of each applicant in the form of lack of recent convictions – reception of evidence from trial counsel – material suggested that if character raised Crown could have rebutted it – forensic reasons identified – complaint that trial judge allowed Crown to adduce additional evidence at trial without adequate notice – evidence of insurance underwriter as to whether cover would have been offered if intention to commit suicide disclosed – additional evidence not opinion evidence – no error by trial judge in allowing evidence to be adduced - both applicants' appeal against conviction dismissed. SENTENCE APPEAL: no error by sentencing judge in determining objective seriousness of the offence – duration of the conspiracy substantial – conspiracy motivated by greed – degree of planning – role of each applicant – finding of special circumstances – trial judge entitled to refer to other sentencing criteria in adjusting non parole period – sentence not manifestly excessive – both applicants' appeal against sentence dismissed Legislation Cited: - Crimes Act 1900 – s 192E(1) - Crimes (Sentencing Procedure) Act 1999 – s 21A, s 44(2) - Criminal Appeal Act 1912 – s 5, s 6, s 10 - Criminal Appeal Rules – 3A, 23C - Criminal Code 1995 (Cth) – s 130 - Criminal Procedure Act 1986 – s 146 - Evidence Act 1995 – s 79 Cases Cited: - Agius v R [2013] HCA 27; 248 CLR 601 - Ahern v R [1988] HCA 39; 165 CLR 87 - Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 - Ali v R [2005] HCA 8; 214 ALR 1 - Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 - Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 - House v R [1936] HCA 40; 55 CLR 499 - Hughes Aircraft Systems International v Airservices Australia (No. 3) (1997) 80 FCR 276 - La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 - M v R [1994] HCA 63; 181 CLR 487 - Markarian v R [2005] HCA 25; 228 CLR 357 - Matthews v R [2013] NSWCCA 187 - MFA v R [2002] HCA 53; 213 CLR 606 - Morris v R [1987] HCA 50; 163 CLR 454 - Nudd v R [2006] HCA 9, 80 ALJR 614 - Page v R [2007] NSWCCA 175 - Peters v R [1998] HCA 7; 192 CLR 493 - R v Birks (1990) 19 NSWLR 677 - R v Ghosh [1982] QB 1053 - R v LK (2010) 241 CLR 177 - R v Lewis [2003] NSWCCA 375 - R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 - R v Wasson [2004] NSWCCA 200 - R v Walsh [2000] VSC 114 - Rasic v R [2009] NSWCCA 202 - Seltsam Pty Ltd v McNeill [2006] NSWCA 158 - SKA v R [2011] HCA 13; 243 CLR 400 - The Queen v Hoar [1981] HCA 67; 148 CLR 32 - TKWJ v R [2002] HCA 46; 212 CLR 124 Category: Principal judgment Parties: Esther Maree Vella (Applicant in 12/179521: Vella) Peter Siskos (Applicant in 12/179550: Siskos) Crown (Crown in both) Representation: Counsel: P. Webb QC, R. Sweet (Applicant in 12/179521) H. Maarraoui (Applicant in 12/179550) D. Patch (Crown in both) Solicitors: Legal Aid NSW (Applicant in 12/179521) Metro Lawyers (Applicant in 12/179550) Director of Public Prosecutions (Crown in both) File Number(s): 2012/179521; 2012/179550 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Date of Decision: 04 April 2014 Before: Townsden J File Number(s): 12/179521; 12/179550 Judgment 1. GLEESON JA: I have had the benefit of reading in draft the reasons of Beech-Jones J. Ms Vella 1. In relation to the applicant Esther Vella, I agree with his Honour's reasons in respect of grounds 1, 4, 5 and 6 of the appeal against conviction. In relation to ground 7, I would refuse leave to raise this ground. I otherwise agree with the orders which his Honour has proposed. 2. I also agree with his Honour's reasons and the orders he has proposed in respect of Ms Vella's appeal against sentence. 3. My reasons for refusing leave to raise ground 7 of the conviction appeal may be stated briefly. 4. Ground 7 of Ms Vella's amended grounds of appeal filed 27 April 2015 was in the following terms: "That, in the event of a finding that there was an unreasonable verdict against Mr Siskos, the Court should hold that there was no agreement to support the charge of conspiracy, and that there was an unreasonable verdict against the appellant." 1. Ground 7 was referred to in the amended submissions of Ms Vella in support of her conviction appeal, but as Beech-Jones J observes (at [71]), those written submissions did not contain anything in support of that ground and no oral submissions were directed to this ground. However, the absence of any written or oral submissions in support of this ground may be taken as a reflection of the contingent nature of this ground. 2. As expressed, ground 7 is contingent upon this Court finding that there was an unreasonable verdict against the co-accused, Mr Siskos. It is only necessary to note that no such ground of appeal was relied upon by Mr Siskos in his appeal against conviction, and the dismissal of Mr Siskos' appeal has the consequence that the premise of ground 7 is not made out. It follows, in my view, that leave to appeal should be refused in respect of this ground. 3. Against the possibility that ground 7 is to be read differently as suggesting an unreasonable verdict against Ms Vella irrespective of the outcome of Mr Siskos' conviction appeal, I have reviewed the evidence. As noted by Beech-Jones J, such review must be undertaken in circumstances where Ms Vella has not drawn attention to any particular matter or item of evidence in support of this ground of appeal. If, contrary to my view, leave to raise this ground should be granted, then for the reasons given by Beech-Jones J, and having reviewed the evidence, I agree that ground 7 should be rejected. Mr Siskos 1. In relation to the applicant Peter Siskos, I agree with his Honour's reasons in respect of grounds 1, 2 and 3 of the appeal against conviction, and the orders which his Honour has proposed. 2. I also agree with his Honour's reasons and the orders he has proposed in respect of Mr Siskos' appeal against sentence. 3. HIDDEN J: I agree with Beech-Jones J. 4. As to ground 7 in Ms Vella's appeal, that ground is curiously expressed. However, given that Mr Siskos does not advance a ground that the verdict against him was unreasonable, I do not see Ms Vella's ground as being purely contingent upon such a finding by this court in his case. Rather, I see the ground as asserting that the evidence did not support the agreement between the two applicants alleged, and as amounting to a complaint by Ms Vella that the verdict of guilty against her is unreasonable. I am content to adopt the approach of Beech-Jones J to that ground. 5. BEECH-JONES J: On 2 October 2013 the applicants, Esther Vella and Peter Siskos, were arraigned before a jury panel in the District Court on an indictment that contained two counts. The first count charged both of them with a crime under the common law of conspiring with each other to defraud an insurance company, OnePath Life Ltd ("OnePath"). The second count was an alternative to the first count. It charged both of them with an offence under s 192E(1)(b) of the Crimes Act 1900 of dishonestly obtaining a financial advantage in the form of a life insurance policy over the life of the applicant, Mr Siskos, by deception. The alleged deception was that they represented to OnePath that an application for the policy was "made in good faith when to the knowledge of [the applicants] it was not". They pleaded not guilty to both counts. 6. On 28 October 2013 the jury returned a verdict of guilty for each of Ms Vella and Mr Siskos to count 1. This verdict rendered it unnecessary to take a verdict of count 2. 7. On 4 April 2014 Ms Vella was convicted and sentenced to a term of imprisonment of six years and six months commencing on 28 October 2013 and expiring on 27 July 2020. The Court fixed a non-parole period of four years and three months. 8. On the same day Mr Siskos was convicted and sentenced to a term of imprisonment of two years and six months commencing 4 April 2014 and expiring on 3 September 2016. The Court fixed a non-parole period of fifteen months. The non-parole period expires on 3 July 2015. The short period of time between the publication of this judgment and the expiry of that period is solely a product of delay by Mr Siskos in pursuing these proceedings. 9. Each of Ms Vella and Mr Siskos now seek to appeal their convictions and seek leave to appeal against their sentences. They also apply for various extensions of time. 10. Ms Vella requires an extension of time up to an including 3 February 2015 to pursue both her appeal against conviction and her application for leave to appeal against sentence as the documents referred to in rule 23C of the Criminal Appeal Rules were not filed within six months of her filing a notice of intention to appeal against her conviction and sentence (Criminal Appeal Act 1912; s 10; Criminal Appeal rule 3A). In support of the application to extend time her solicitor swore an affidavit describing the difficulties he experienced obtaining copies of transcript and exhibits as well as securing funds to prosecute the appeal. While the entire period of the delay has not been fully explained I propose that the extension be granted, the appeal having now been fully argued. 11. Mr Siskos does not need an extension of time to seek leave to appeal against his sentence but he requires an extension of time up to and including 21 April 2015 to appeal against his conviction. In support of the extension his solicitor has sworn an affidavit explaining that he was instructed on 2 March 2015 and describing the efforts he has made since that time. While this does not explain the delay prior to then I nevertheless propose that the extension be granted given that his appeal has also been fully argued. 12. As Ms Vella contends that her conviction was unsafe and unsatisfactory, and to understand the various bases of challenge to the convictions, it is first necessary to outline the evidence said to support the Crown case as well as the contrary evidence. The Crown Case 1. In something of an understatement the trial judge described the Crown case as "somewhat extraordinary". It was common ground that in July 2010 Ms Vella and Mr Siskos obtained a life insurance policy over Mr Siskos' life from OnePath for the amount of $1,723,000.00 (the "policy") and that Ms Vella was the ultimate beneficiary of the policy. The policy responded in the event that Mr Siskos committed suicide but only if it that occurred at least thirteen months after its inception date (the "preclusion period"). The preclusion period expired on 10 September 2011. 2. The Crown alleged that, from a time commencing no later than when they obtained coverage through to a time after the expiry of the preclusion period, Ms Vella and Mr Siskos agreed that Mr Siskos would commit suicide so that Ms Vella could recover under the policy. It contended that, soon after the expiry of the preclusion period, Mr Siskos stopped attending work and lived in train stations in contemplation of committing suicide but that, in the words of one of the witnesses with whom Ms Vella agreed, he "chickened out" (see [61]). 3. To address the grounds of appeal, it is necessary to explain what the real issues at the trial were. Consistent with authority, the trial judge directed the jury that a defrauding involved the intentional use of "dishonest means" to deprive another person of their property or to imperil their rights or interests (see Peters v R [1998] HCA 7; 192 CLR 493 at [30] per Toohey and Gaudron JJ). In this case the Crown did not allege that the fraud lay in the possible making of a claim but in the obtaining of a policy. The relevant imperilment was said to be the underwriting of an insurance policy by OnePath. 4. The trial judge directed the jury as to the dishonest means that had been identified by the Crown as follows: "The dishonest means which the Crown says the accused used here were making the application for insurance not in good faith by agreeing between themselves [that] the accused Peter Siskos [was] to commit suicide after the expiration of the exclusion period leaving the accused Esther Vella as the sole beneficiary. The Crown must establish beyond reasonable doubt that the accused had that knowledge, belief or intent and, if so, on that account the relevant conduct was dishonest. In determining whether the conduct of the accused was dishonest, the standards which you apply is that of ordinary decent people." (emphasis added) 1. The latter part of this direction was consistent with the meaning of "dishonest" stated in Peters at [18] and confirmed in McLeod v R (2003) 214 CLR 230 at [38] (per Gleeson CJ, Gummow and Hayne JJ; cf R v Ghosh [1982] QB 1053 and The Criminal Code 1995 (Cth), s 130.3). 2. The reference by the trial judge to the application for the insurance policy not being made in "good faith" reflected the manner in which the Crown opened and closed its case although little was said at the trial as to what "good faith" meant in this context. Properly analysed, the Crown case, if accepted, involved dishonest means by the applicants in "concealing facts which they had a duty to disclose" (Peters at [84] per McHugh J); that is, on the Crown case the applicants deliberately omitted to inform OnePath of Mr Siskos' intention to commit suicide knowing that they were obliged to disclose it. The reference to "good faith" in the directions should be so understood. 3. A review of the trial transcript reveals that, other than at the time of the debate over the admission of additional evidence from OnePath's underwriter which is the subject of ground 6 of Ms Vella's conviction appeal, it was not truly in issue at the trial that, if Ms Vella and Mr Siskos entered into the agreement the Crown alleged they did, then that was a matter that each knew had to be disclosed to OnePath and the failure to do so involved "dishonest means". Counsel for Mr Siskos did not make any submission on this issue to the jury. In his address to the jury Counsel for Ms Vella made reference to whether Ms Vella understood she had a "particular obligation" to disclose Mr Siskos' alleged suicidal intentions to OnePath, but only in relation to the alternative count. He ultimately described the issue for the jury on count 1 as being whether it had been "established beyond reasonable" doubt that they have reached this agreement alleged by the Crown. Further, none of the Counsel appearing at the trial sought any further direction from the trial judge on the question of "dishonest means" after his Honour gave the above direction. No complaint is made about any aspect of his Honour's directions in the grounds of appeal. 4. It follows that count 1 being a charge of conspiracy, the real issue(s) at the trial in relation to count 1 was whether the Crown proved beyond reasonable doubt the existence of the agreement referred to in [22] and that each of the applicants intended to give effect to that agreement (Peters at [66] per McHugh J; R v LK (2010) 241 CLR 177 at [62] to [63] per French CJ, and at [110] per Gummow, Hayne, Crennan, Kiefel and Bell JJ). The balance of this judgment proceeds on that basis. The applicants' relationship 1. At the time of the events the subject of the charges in the indictment Mr Siskos was 49 years of age. He was employed as a security guard. Ms Vella was 51. She worked as a casual schoolteacher. Ms Vella owned a house in Strathfield from which she operated a boarding house. She also leased a house in Cabarita at which she also accepted boarders. 2. The Crown called Mr Siskos' sister who stated that the applicants started dating in 1989 but the relationship was tumultuous. She said they broke up and reunited on a number of occasions although they remained friends, even during periods that Ms Vella dated other men. She also said that at times they referred to each other as brother and sister. 3. The Crown pointed to two particular aspects of their relationship as especially supportive of its case. 4. First, the Crown called a number of witnesses who testified to the effect that Ms Vella repeatedly asserted that Mr Siskos was to blame for her financial pressures and that he owed her a substantial amount of money. Some of that evidence was as follows. 5. Ms Susan Byrne undertook some weekend cleaning work at the Cabarita premises from September 2010. She recounted Ms Vella repeating the "same kind of stories over and over again" to the effect that Mr Siskos "owed her money and stole from her and used her" and that he owed her "just under $700,000". She recalled Ms Vella stating that "[s]he wanted [Mr Siskos] out of her life, she just wanted him out, she was sick of him, he was leaching off her". 6. Ms Christine Kodrun rented a room at the Cabarita property from February 2011 to October 2011. She recalled Ms Vella telling her that she owed approximately $700,000 in respect of the Strathfield property and that "Peter had accrued [that] debt" and that "otherwise she probably would've owned the property outright". 7. Ms Kristel Woodward rented a room at the Strathfield premises from late August 2011 until October 2011. She recalled many conversations with Ms Vella in which she complained about Mr Siskos causing her financial difficulties. She recalled that, in one conversation, Ms Vella was "very erratic, very emotional, teary" and that Ms Vella said "that she'd wished she'd never met Peter; that you know she would be a millionaire if she hadn't met Peter; … that she wished he was dead". She recalled Ms Vella asking her "did I know anybody that would, you know, kill him". In cross examination she agreed that Ms Vella was "emotional" during this conversation but stated that there were "other times … where she has said that she wanted him gone, she has not been emotional". 8. Second, the Crown also called evidence to the effect that Ms Vella dominated Mr Siskos and he was compliant with her wishes. Ms Byrne recalled an occasion in November 2010 overhearing Ms Vella screaming at Mr Siskos "I want you out, I'm sick of you, you've cost me so much I'm fed up". She said that Ms Vella continued to scream at him and that his response was "very-very quiet, very like just agreeing with her 'Yes Esther, whatever'". Ms Kodrun described Ms Vella and Mr Siskos' relationship as "very strange", that Ms Vella "was very domineering and very controlling towards Peter" and that "[h]e very much obeyed all her instructions". She added that they had no "physical relationship" and there was "no emotional involvement or any hugging, or any, any physical contact". A friend of Mr Siskos, Tony Shoesmith, recalled Mr Siskos saying in 2011 about Ms Vella that he "loved [Ms Vella] to pieces" and that "[h]is focus was work and Esther". Ms Jia Shi's evidence – early 2010 1. In February 2010 Ms Jia Shi occupied a room at the house in Cabarita. Ms Vella introduced her to Mr Siskos as her cousin. She recalled that he attended the house two to three times a week. She recalled that some weeks after she moved in she overheard an argument between Ms Vella and Mr Siskos in which Ms Vella "mentioned a debt … like … 750 thousand" and that: "… Peter said 'what do you want me to do?' Esther said, Peter said 'Do you want me to rob a bank or kill myself?' and Esther said, 'You can't, you can't either, you're too stupid, you can't even rob the bank, you're not a bank robber. You can leave your wallet and fall over. Why don't you increase your life insurance?" She recalled that Mr Siskos replied "I don't know". 1. Ms Shi said that on 19 March 2010 she had a conversation with Ms Vella in her bedroom in which Ms Vella complained about the financial pressure she was under. She recalled her mentioning a debt of $750,000. She recalled Ms Vella stating that "Peter should kill himself and his life will be sacrificed for homeless children". 2. Ms Shi said that on 24 March 2010 Ms Vella told her that "Peter should kill himself to pay for the debt". She recalled Ms Vella mentioning a "Plan A" and a "Plan B" and that: "[Ms Vella] said 'Plan A is that Peter will increase the life insurance' – so when he died the money call all go – she can get the money. 'And the Plan B is sending Peter to kill Esther's mother in Perth'." 1. Ms Shi recalled that Ms Vella stated that she preferred plan B "because at least Peter is of some use to me". Ms Shi said that Ms Vella threatened her and her family and that she left the house almost immediately after that. She went to the library at the University she attended and typed a statement which she later provided to the police. July 2010 – Obtaining the Policy 1. Up until June 2010 Mr Siskos had life insurance cover with St George for just under $850,000.00. 2. On 25 June 2010 Mr Siskos and Ms Vella consulted an insurance broker, Mr Wen Wang. Based on their instructions he prepared a joint financial plan. The plan recorded "family income needs" as $1,033,293 and the necessity to "clear debts" of $690,000. Mr Wang recommended, inter alia, obtaining life cover for Mr Siskos for $1,723,293.00 with the policy to be owned by his superannuation fund which would fund the annual premium of approximately $15,000.00. Mr Wang recorded Mr Siskos' annual income as $74,213.00. 3. On 30 June 2010 Mr Wang sent an email to OnePath asking for a waiver of the preclusion period for suicide. Mr Wang's recollection was that the waiver was requested by the "client". Mr Wang recalled that Mr Siskos "expressed his concern to me regarding the waiting period" and that was the only waiting period that he queried. The policy adopted a level premium structure, that is, one which provided for a relatively level rate of premium over a number of years by using a higher level of cost for the risk assumed in earlier years than would otherwise be the case to subsidise premium rates in later years. In cross examination Mr Wang agreed that a person intent on committing suicide at the expiry of the preclusion period could have minimised the cost of obtaining a benefit by adopting a stepped premium structure instead. 4. On 2 July 2010 the applicants attended another meeting with Mr Wang. They accepted his recommendation. They completed and signed an application for an insurance policy with OnePath. It contained the standard advice concerning an insured's duty of disclosure, a series of detailed questions and answers concerning Mr Siskos' health including his mental health, and an acknowledgement by both that they understood their duty of disclosure and that cover was "conditional upon the life insured disclosing all matters known to them that are relevant to [OnePath's] decision to issue any cover". The application form nominated Ms Vella as the 100% beneficiary of the policy. 5. OnePath's underwriter for the policy was Ms Henriette Scheepers. Ms Scheepers accepted the risk on behalf of OnePath. She accepted that there was nothing unusual about the request for a waiver of the exclusion period and that OnePath agreed to the waiver to the extent that Mr Siskos was obtaining cover to the level he previously held with St George. One aspect of Ms Scheepers' evidence is the subject of ground 6 of Ms Vella's appeal against her conviction. The policy incepted from 10 August 2010. The amount of cover and the operation of the preclusion period have already been described. The Malta money 1. The Crown adduced evidence that Ms Vella repeatedly stated that she was due to receive a large amount of money from an inheritance from her family in Malta which she would use to pay off her debts. Relying on the evidence of Mr Appleby noted below at [53], the Crown contended that these assertions were false and they were in truth a reference to a large sum she expected to receive after Mr Siskos committed suicide. 2. Ms Woodward recalled Ms Vella stating that a property in Malta had been "left to her and she was selling it" but was later told that the "original buyer had backed out and they were now waiting for another buyer for the property". Ms Byrne recalled Ms Vella stating that she had "money coming from a … settlement of a property … maybe it was her father's property he was selling or she was coming into an inheritance" and that it "was coming from Malta … in January of 2011", and that when it arrived "she would be debt-free". Ms Kodrun stated that Ms Vella told her "a minimum of 20 times" that "she was waiting on a large amount of money to come through on 15 September [2011] … from a sale of … property in Malta". When that date passed and no funds were received, Ms Kodrun recalled Ms Vella explaining that the person who was purchasing the land had died "and the relatives were trying to deal with the situation so she wasn't sure if it was going to come through". Other Admissions 1. Each of Ms Woodward and Ms Byrne attributed other statements to Ms Vella that supported the Crown case. In her evidence Ms Woodward stated that Ms Vella often read Tarot cards and that "she advised me [that] in the tarot cards that she could see that Peter was going to commit suicide". She also recalled that Ms Vella told her that "Peter had also brought it up on numerous occasions that he felt like he wasn't going to make it to his 50th birthday". Mr Siskos turned 50 on 1 November 2011. 2. Ms Byrne recalled Ms Vella "talk[ing] about how much debt she was in", making reference to her committing suicide and mentioning that Mr Siskos had also "talked about it". In particular she recalled Ms Vella stating that Mr Siskos said: "… That he would say 'I've had enough, I've had enough of this'. The constant hounding – her hounding him, constantly giving out to him, constantly telling him how much he owed and how much he had cost her, that he would be better off – that he would be better off dead." October 2011 1. As noted the preclusion period expired on September 2011. The Crown called Mr Tony Appleby who rented a room at the Strathfield property from Ms Vella. Some time in mid-October 2011 he arranged to meet Ms Vella at a hotel in Strathfield. He met her and Mr Siskos outside the front of the hotel. He heard Ms Vella say to Mr Siskos "the Malta money is coming soon, isn't it?" Mr Siskos replying "Yeah" and shrugging his shoulders. Consistent with the other witnesses noted above, Mr Appleby said that before and after this meeting Ms Vella had repeatedly told him that she "was getting some money from Malta" although the date of its supposed arrival was put back. Mr Appleby recalled that she became "stressed about the [Malta] money". He recalled that some time in this period Ms Vella referred to Mr Siskos and stated "Oh he's gone again". 2. Mr Shoesmith stated that on Monday 10 October 2011 he arranged with Mr Siskos for him to attend at Mr Shoesmith's home on Saturday 15 October 2011 to help move a fridge. On Thursday 13 October 2011 he met Mr Siskos for dinner. In cross examination he agreed that Mr Siskos had not seemed "any different to his normal self". On Friday 14 October 2011 he received a telephone call from a co-worker of Mr Siskos stating that he had not attended work that day. He rang Mr Siskos and left messages. Mr Siskos did not return his call. Mr Shoesmith described this as "very unusual". Mr Shoesmith drove to various worksites looking for Mr Siskos but could not find him. Mr Siskos did not attend to move the fridge on Saturday 15 October 2011. 3. A few days later Mr Shoesmith rang one of Mr Siskos' sisters and told her to report him missing to the police. On 24 October 2011 that sister, Ms Fossey, reported Mr Siskos missing. 4. A few nights prior to 24 October 2011 Mr Appleby had a conversation with Ms Vella. She said to him "[a]ctually Tony, there's just no Malta money". Mr Appleby told the jury: "… [s]he told me that Peter had agreed to commit suicide and they'd taken out an insurance policy and she would – and Esther would – when Peter was to die she would – Esther would get the insurance money and that'll cover what he owed her and she told me that it'll be – she told me a figure of 1.8 million and she told me that'd last her for 30 odd years and she'd see Peter up in heaven." 1. Mr Appleby also said that Ms Vella said that Mr Siskos was "going to jump in front of a train … at Croydon Station and commit suicide", that Mr Siskos owed her $700,000 and that "it was supposed to happen in the next day or so". 2. On 24 October 2011 Mr Appleby saw two detectives at the front of the Strathfield property. They were investigating the missing person's report lodged by Ms Fossey. Mr Appleby contacted Ms Vella and they attended the police station. Ms Vella provided a statement to the police, but it was not tendered at the trial. After they left the station, Mr Appleby said to her "if anything's happened to Peter, the[n], if you've got anything that could incriminate you, you should she get rid of it". This prompted Ms Vella to take Mr Appleby on a tour of the outer western suburbs as she retrieved three laptop computers she hid in some bushes in a car park in Cabarita, collected some cassette tapes and paperwork from her home, threw the laptops into the Nepean River at Penrith and burnt the other items next to the river. They also retrieved and disposed of some more tapes and material from the bushes in a car park and Ms Vella's home. 3. On 25 October 2011 Mr Shoesmith made a statement to the police. On the next day, ie 26 October 2011, he received a telephone call and was told that Mr Siskos had been seen in Burwood. Mr Shoesmith found him in Burwood Park reading a book. Mr Shoesmith said that he looked "dishevelled" and as though he had been "living rough". Mr Siskos told him "he'd just had enough and just rode the trains" and had slept on train platforms and "in a park during the day". 4. Mr Shoesmith took Mr Siskos to a police station. They arrived at 3:00pm on 26 October 2011. He participated in an electronically recorded interview. He told the police that he had been living on the streets for two weeks and staying on trains "and when the train stops … in the train station". He was asked whether he was depressed about money problems and replied "yeah … it depressed me and, um, I'm even, like, ashamed to say, I just dumped everything in [Ms Vella's] lap and just left it". He denied having any intention to harm himself or having discussed collecting on his insurance policy. He stated that he was aware of the thirteen month preclusion clause as Mr Wang "pointed it out to us". He denied that he owed Ms Vella money but accepted that he had "a responsibility to … help her". 5. Mr Appleby had second thoughts about his actions in assisting Ms Vella to destroy evidence. On 26 October 2011 he contacted the police. He took them to the locations at which he and Ms Vella had disposed of the various items noted above. The police were able to retrieve some items including the laptop computers, but they were unusable. However they also retrieved a number of audio cassette tapes from a public waste bin. One of these cassettes bore the label "Copy of Pete admitting he is a parasite". The recording was played to the jury during the trial. A transcript of the recording was made available on the appeal. It recorded a dialogue between Ms Vella and Mr Siskos and other persons that was supportive of the Crown's case, especially its characterisation of their relationship. There are repeated references to Ms Vella's debts and Mr Siskos' apparent responsibility for them. At one point Mr Siskos states: "I'm definitely sure, I want the money if I pass away, or when, to cover the debt, ah, that I've left behind." "To be honest with you, I don't care about myself at the moment cause I got too many things worrying about what Esther's going to. What going to happen with her afterwards. How's she going to cope, and for me, if I pass away … well I'll be a very simplistic bloke, if I go I go. I just don't, the main thing that's bothering me is leaving all this … debt." 1. On the evening of 26 October 2011 Mr Appleby telephoned Esther Vella and arranged to meet her at Burwood RSL on 28 October 2011. 2. Prior to the meeting at the Burwood RSL, police conducted surveillance on the applicants. A police officer observed them in the carpark of the Burwood RSL having a conversation that lasted fourteen minutes which he described as an "animated conversation and they were both waving their arms around". He observed Ms Vella then walked into the Burwood RSL to see Mr Appleby. Mr Siskos left. 3. Mr Appleby attended the meeting with Ms Vella at the Burwood RSL fitted with a listening device. Their meeting was recorded. The tape was not available to this Court but a transcript of the conversation was provided. On behalf of Ms Vella it was contended that it did not record any admissions by her (see [79]). An edited transcript of the discussion was made available to the Court. It is replete with references to suicide involving a train, the destruction of incriminating evidence and her lost opportunity to obtain an insurance payout. It included the following exchange: "Esther Vella: 'They knew about the train thing, so someone has told them." Tony Appleby: "The what sorry?" Esther Vella: "They knew about the train thing." Tony Appleby: "Okay, yeah, yeah." Esther Vella: "And I am …" Tony Appleby: "No this is what's weird, I don't see if I haven't told anybody anything." Esther Vella: "Well the only way they would have got it because I was stupid and I did a search on suicide." And later, Tony Appleby: "So, so what happened to Peter, he just chickened out, did he?" Esther Vella: "Yeah." Tony Appleby: "That's basically …" Esther Vella: "He's always been a coward so I don't think much of him in, in a lot of ways." (emphasis added) 1. Later Ms Vella and Mr Appleby discuss the finer points of the difference between a conspiracy and a substantive offence: "Vella: …they can't charge you on a plan. Appleby: I don't know. Vella: You could be writing a novel, you could be writing a book. Appleby: Oh, O.K., yeah. Vella: Cause it didn't happen. Appleby: You didn't have it on paper, did you your plan? Vella: No, but I had bits of scrap, but they already have enough. They had enough evidence. Appleby: So all the papers that we burnt had stuff on it that could have made it worst? Vella: That was in my handwriting. Appleby: In your handwriting? Vella: (no audible reply) Appleby: Oh boy. Boy, oh boy, oh boy. Mmm … So probably just as well it got burnt then? Vella: Yeah." (emphasis added) 1. The emphasised portion of the above clearly involves an admission by Ms Vella to the existence of a "plan". 2. On 31 October 2011 Mr Siskos telephoned Mr Wang and instructed him to cancel the policy. Mr Appleby stated that around this time Ms Vella told him that "Peter's cancelled his life insurance". Mr Wang sent OnePath an email on 8 November 2011 requesting cancellation. The policy was cancelled on 9 November 2011. The applicants were arrested on 6 June 2012. Mr Siskos' evidence 1. Ms Vella did not give evidence at the trial but Mr Siskos did. He denied entering into any agreement with Ms Vella to commit suicide after the expiry of the exclusion period or having any intention to commit suicide at any point. He said that he had known Ms Vella for nearly twenty five years. At first their relationship was intimate but thereafter it was a "very close friendship". He said that she had paid for them both to travel to Malta and paid a "few bills, clothing, stuff like that" for which he had received the benefit. He said the cassette recording noted in [58] was made during a meeting they attended with a financial counselling service called "Christians Against Poverty". He agreed that he stated that he owed Ms Vella $760,000 but that was only because "I didn't want to have an argument when we had the meeting of who the debt was or where it belonged to or whatever". He denied making any reference to robbing a bank or killing himself in any conversation as suggested by Ms Shi. Mr Siskos agreed that he asked Mr Wang to have the exclusion period for insurance waived but that was only because he wanted "to get the best value on his policy". He said that Mr Wang also helped him with making plans for a lawn mowing business. 2. Mr Siskos said that in October 2011 he was travelling to work on the train but decided not to continue because he "had enough". However, he denied being suicidal and said that he only "wanted to get away". In cross examination he either denied or did not recall other parts of the Crown case including any knowledge of the "Malta deal", that Ms Vella said to him in the presence of Mr Appleby that the "Malta money is coming soon, isn't it", that after he spoke to the police he told Ms Vella of the evidence that the police had against her or that he cancelled the policy because he knew he could no longer claim on it. Ms Vella's Conviction Appeal 1. Ms Vella's notice of appeal raised seven grounds of appeal against her conviction. Grounds 2 to 5 concerned the conduct of her Counsel at the trial. In light of an affidavit that was filed and read from that Counsel, grounds 2 and 3 were not pressed but the balance were. I will address ground 7 first and the remainder in turn. Ground 7 – Unreasonable Verdict 1. Ground 7 of the appeal contends that the jury's verdict of guilty was "unreasonable, or cannot be supported having regard to the evidence" (Criminal Appeal Act, s 6(1); see MFA v R [2002] HCA 53; 213 CLR 606 at [58]). In raising this ground the appellant implicitly seeks a grant of leave under s 5(1)(b) of the Criminal Appeal Act 1912 to raise a ground of appeal involving a question of fact or of mixed law and fact (Rasic v R [2009] NSWCCA 202 at [12]). 2. In determining this ground of appeal the Court is required to "ask itself ... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v R [1994] HCA 63; 181 CLR 487 at 493) ("M v R"). The Court must undertake its own "independent assessment of the evidence, both as to its sufficiency and its quality" (Morris v R [1987] HCA 50; 163 CLR 454 at 473). The Court must consider any competing evidence to that presented by the Crown and weigh the conflicting evidence (SKA v R [2011] HCA 13; 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ). 3. The significance of the advantage enjoyed by the jury in hearing and observing witnesses give their evidence compared to this Court on this ground of appeal was explained in SKA at [13] (per French CJ, Gummow and Kiefel JJ) as follows: "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M [v R at 494] went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred'." 1. In Lee v R [2013] NSWCCA 68 at [210], Basten JA stressed the need to identify the particular aspects of the verdict ("the complaints") that were unsafe and the matters said to give rise to the requisite doubt. In this case the written submissions filed on behalf of Ms Vella do not state anything in support of the ground and no oral submissions were directed to this ground. It may be that the mere invocation of the ground triggers an obligation on the Court to assess the sufficiency and quality of all of the evidence independently in order to determine whether or not the requisite doubt exists. I have undertaken that review but the failure to make any meaningful submission in support of the ground means that the assessment has been undertaken in circumstances where there has not been identified any particular issue or item of evidence as warranting particular scrutiny. The balance of Ms Vella's grounds of appeal do not raise any matter that affects this ground. 2. As noted, the real issue(s) in the trial was whether the Crown established beyond reasonable doubt that, from a time no later than the making of the application to OnePath, Ms Vella and Mr Siskos agreed that Mr Siskos would commit suicide after the expiry of the exclusion period and intended to give effect to that agreement. 3. The evidence that Ms Vella entered into such an agreement and she intended it to be carried into effect was very strong. I have already described the evidence concerning her relationship with Mr Siskos. Both of them attended upon Mr Wang, they both signed the insurance application and the policy was secured over his life in her favour. As noted, Ms Shi overheard a conversation between them in which he referred to killing himself (see [37]). He acknowledged his debt to her in the recorded conversation noted in [38] and appears to have contemplated suicide as a means of satisfying it. 4. Ms Vella's statements to Ms Shi, Ms Byrne and especially to Mr Appleby are particularly incriminating. Each of those witnesses had little if anything to do with each other and no apparent motive to incriminate Ms Vella, yet their evidence is consistent as to Ms Vella's plans and intentions. Ms Vella's repeated references to the "Malta deal", the stated timing of receipt of funds from that deal, the reference to that deal in a conversation with Mr Siskos ([50]) and her subsequent concession to Mr Appleby that there was no such deal strongly support the Crown's contention that it was in truth a reference to the funds she expected to receive following Mr Siskos' suicide. Her actions in destroying evidence only confirm the effect of this evidence. 5. Further, various acts of Mr Siskos that were not undertaken in Ms Vella's presence were nevertheless admissible against her to prove his participation in the conspiracy (Ahern v R [1988] HCA 39; 165 CLR 87, p 93) ("Ahern"). Those acts included his request to Mr Wang to have the preclusion period waived, his cancellation of the policy in November 2011 and most significantly his actions in disappearing in October 2011 soon after the expiry of the preclusion period. (The jury were instructed that Ms Vella's statements to Ms Shi and Mr Appleby were not evidence against Mr Siskos of his participation in the conspiracy. In the case of the statements to Ms Shi it appears to have been accepted that these statements were made prior to the conspiracy being formed. It is not clear why the statements made by Ms Vella to Mr Appleby were not evidence against Mr Siskos of his participation: see Ahern at p 100. However it is not necessary to consider this further as it is not relevant to this ground which concerns the case against Ms Vella.) 6. The principal evidence in favour of Ms Vella was that given on oath by Mr Siskos. The trial judge directed the jury that, if there was a reasonable possibility that the version given by Mr Siskos was true, then the Crown case failed. It follows from their verdict that the jury comprehensively rejected that account. To the extent that Mr Siskos' denial of the Crown case is a matter capable of raising a reasonable doubt before this Court as to Ms Vella's guilt, it was a doubt of the kind that was capable of being resolved by the advantage conferred on the jury in "seeing and hearing the evidence" of Mr Siskos (cf M v R at 494). 7. The most challenging aspect of the Crown case was whether it established beyond reasonable doubt that Mr Siskos intended to give effect to his agreement with Ms Vella, that is whether he intended to take his own life. Nevertheless there was a powerful body of evidence to support that fact, especially the coincidence in timing between the end of the preclusion period and Mr Siskos' disappearance. It was "open to the jury to be satisfied beyond reasonable doubt" of that matter and Ms Vella's guilt generally, notwithstanding Mr Siskos' denials. 8. I would grant leave to Ms Vella to raise ground 7 but reject it. Ground 1: Admissions of Ms Vella recorded by a Listening Device 1. Ground 1 of Ms Vella's appeal contends that his Honour erred in directing the jury as follows: "Moreover, the Crown relies upon the admissions made by Esther Vella said to have been made at the time of the disappearance of Peter Siskos. You may recall the evidence of Tony Appleby who stated that Esther Vella informed him after the disappearance of Peter Siskos that there was no Malta money and that Peter had agreed to commit suicide and that they had taken out an insurance policy and she would receive the insurance money and that would cover what he owed her. The Crown also relies on evidence from the listening device recording where she makes admissions about the plan." (emphasis added) 1. The written submissions in support of this ground raise the bare contention that this direction was erroneous because the listening device recording does not reveal any admissions. This contention is without foundation. Some of the relevant parts of the conversation recorded by the listening device are set out above at [61] to [62]]. They clearly constitute admissions. Otherwise the direction that was given was favourable to Ms Vella in that his Honour did not isolate what the admissions were. If his Honour had attempted that, it would have been a lengthy process and very damaging to Ms Vella's case. 2. This ground requires a grant of leave in that it involves a mixed question of law and fact. No complaint was made about this direction at the trial. Rule 4 applies. I would refuse leave to raise this ground. Ground 4: Inferences from the fact that Mr Siskos was still alive 1. Ground 4 of Ms Vella's amended grounds of appeal is expressed as follows: "[His Honour] erred in failing to direct the jury that a significant issue in the case was whether or not Mr Peter Siskos had reached an agreement with the Appellant that he was going to commit suicide after the expiration of the thirteen (13) month suicide exclusion clause and that his Honour further erred, in failing to give the jury an inference direction, directing them as to what inferences could be drawn from the fact that Mr Peter Siskos was alive at the time of the hearing." 1. The first part of this ground is simply wrong. His Honour did direct the jury to the effect that they had to be satisfied beyond reasonable doubt that Ms Vella and Mr Siskos had reached an agreement that he was going to commit suicide after the expiration of the thirteen month exclusion clause. Thus at one point his Honour told the jury: "A conspiracy is an agreement between two or more persons to do an unlawful act. The nub of the offence is the agreement to engage in a common enterprise to do the unlawful act alleged. In the present case the Crown alleges that the agreement was between the accused Peter Siskos and the accused Esther Vella. The agreement was for the accused Peter Siskos to take out a life insurance policy on the understanding he would subsequently take his own life leaving Esther Vella as the sole beneficiary. It is the Crown case that this agreement was not disclosed to the insurer OnePath Life Limited." (emphasis added) 1. Further, as already noted, in explaining the dishonest means said to have been employed, his Honour referred to an alleged agreement "between themselves [that] the accused Peter Siskos [would] commit suicide after the expiration of the exclusion period leaving the accused Esther Vella as the sole beneficiary". 2. In relation to the balance of the ground, it is true the trial judge did not specifically advert to Mr Siskos' status as a living being in his directions to the jury. Given that Mr Siskos was on trial before them and gave evidence over two days, it can safely be assumed that the jury were aware that he was still alive. The self-evident fact that he was alive was not something upon which the jury could draw inferences but was instead an objective fact tending against the jury drawing the inference contended for by the Crown that he entered into the agreement with Ms Vella to end his life after the expiration of the exclusion period. However, the Crown case was that he withdrew from the agreement at the last minute. As against Ms Vella the Crown relied on her apparent agreement with Mr Appleby's description that "he just chickened out" and her description of him as a "coward" (see [61]). It also relied on Mr Siskos' conduct in disappearing from work and loitering at train stations in the period after the exclusion period expired. These were all matters for the jury to consider. 3. No specific direction was sought by Counsel for Ms Vella (or Mr Siskos) on the significance of the fact that Mr Siskos was alive at the time of the trial. Any direction on that topic would have been an insult to the jury's intelligence. Rule 4 applies to this ground. I propose that leave to raise it should be refused. Ground 5: Failure to lead character evidence 1. Ground 5 of Ms Vella's Amended Grounds of Appeal contends that: "… [Ms Vella] experienced a miscarriage of justice by reason of flagrantly incompetent legal representation, which resulted in the Jury being unaware that neither she nor Mr Siskos had any criminal convictions for approximately thirty (30) years and/or was a person of good character." 1. Prior to the close of the Crown case the trial judge raised with each of Counsel for Ms Vella and Mr Siskos whether they were seeking a direction concerning their client's supposedly good character. Each of them advised that they were not. Ms Vella's only prior convictions were in Western Australia in 1978 when she was convicted of three counts of stealing and fined $25, $10 and $20 respectively. Ms Vella was nineteen years old when she was convicted of those offences and was fifty-four years old at the time of her trial. The form of character evidence that it was contended should have been adduced was asking the officer in charge of the investigation to agree with the proposition that Ms Vella "had no prior criminal history extending over a period of thirty-five (35) years and that her only criminal conviction was for a minor matter, approximately thirty-five (35) years ago". Mr Siskos' prior convictions are outlined below at [134]. 2. In assessing complaints about the conduct of Counsel, the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice (TKWJ v R [2002] HCA 46; 212 CLR 124 at [79] per McHugh J, Ali v R [2005] HCA 8; 214 ALR 1 at [18] per Hayne J). This involves a consideration of what did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd v R [2006] HCA 9, 80 ALJR 614 ("Nudd") at [24] per Gummow and Hayne JJ; TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J at [101], per Gummow J and at [103]-[108] per Hayne J). 3. The ground of appeal contends that trial Counsel's conduct displayed "flagrant incompetence" by his failure to lead character evidence concerning Ms Vella and Mr Siskos. The phrase "flagrant incompetence" is sometimes used to describe the level of departure from the standard expected by Counsel for an accused person that must be shown before a miscarriage of justice will arise (see R v Birks (1990) 19 NSWLR 677, 685; Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 at [30] per Basten JA). However, in Nudd at [16] Gleeson CJ explained that "flagrant incompetence" is not a substitute for the statutory test of a miscarriage of justice and is perhaps best understood as a reference to "conduct incapable of rational explanation on forensic grounds". 4. In any event an accusation of such conduct is a serious matter to raise against a non-party to an appeal and it should not be made without detailed consideration of at least the material available to trial Counsel, the instructions they received and the issues in the trial. In this case the allegation of "flagrant incompetence" appears to have been made by simply noting that both applicants only had relatively minor convictions from many years previously, contending that such convictions could be "explained away", and then asserting that it was therefore inexplicable that character evidence was not called. 5. As further explained below, trial Counsel for Ms Vella swore an affidavit identifying a range of material in addition to her previous convictions that was potentially available to the Crown to be deployed to destroy an assertion that she was of good character. It is not known whether Ms Vella's current legal representatives made any attempts to seek an explanation from that Counsel or Ms Vella's former solicitor about these matters before making an accusation of "flagrant incompetence", but that would have been advisable. However, leaving that aside, they could have asked their client about this matter given that the undisputed evidence is that the subject of adducing evidence of her good character was discussed with her during the trial, and that discussion addressed the possibility of the Crown deploying material to demonstrate she was dishonest in her financial affairs. 6. In Matthews v R [2013] NSWCCA 187 at [63] this Court identified four matters relevant to the inquiry into whether the conduct of Counsel has occasioned a miscarriage of justice namely: "First, there is vested in counsel for an accused person control over and responsibility for the manner in which the trial will be conducted (TKWJ at [74] per McHugh J). Second, relevant unfairness will not be established simply because an 'apparently rational decision' by trial counsel produced adverse consequences for the accused (TKWJ at [16] per Gleeson CJ). Third, inquiries into the subjective thought processes of counsel for taking the steps they did at the trial are to be avoided. Instead the question is whether there could be a reasonable explanation for the course that was adopted at trial (Ali per Hayne J, with whom Gummow J agreed at [25]; TKWJ at [110] per Hayne J). If there could be such an explanation then no error or defect in the trial occasioning any miscarriage of justice is shown to have occurred (Ali id). Fourth, although the inquiry into whether there was an explanation for counsel's conduct is an objective one, there are some perhaps limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions (Nudd at [10] and [17] per Gleeson CJ)." 1. The interaction of the third and fourth principles leaves some scope for uncertainty as to the extent to which evidence from an appellant's former Counsel and solicitor explaining their conduct can be received and considered in determining a complaint that a miscarriage of justice arose from it (see Ahmu at [31] per Basten JA and at [53] per Adams J ). In Nudd Gleeson CJ stressed that so "far as justice permits, the enquiry should be objective" (at [10]) but added "there may be circumstances where it is relevant to ask why some act or omission occurred" (at [10]). One example that his Honour identified was a determination of whether "counsel took a certain course upon the instructions of the client" (id). 2. As noted, an affidavit from trial Counsel for Ms Vella at trial was read on the appeal. The affidavit was read without objection. The affidavit addresses in detail the course taken by Counsel in relation to the decision whether or not to adduce character evidence. In substance the affidavit has three components. 3. First, as has already been adverted to, Counsel identified various items of evidence that were potentially available to the Crown to raise in response to any case on good character raised by Ms Vella. The receipt and consideration of this evidence by this Court is clearly consistent with Nudd. It provides a proper basis for the Court to make an objective assessment of this aspect of the trial. The usual materials provided to the Court on an appeal do not extend to material that was included in the Crown brief or produced to the Court on subpoena but not tendered at the trial. 4. Second, trial Counsel recounts the instructions he received from Ms Vella both on the issue of whether evidence of her good character would be raised and in explanation of the material that was potentially adverse to her character. Consistent with Nudd at [10] and [17] this material can clearly be received and considered. Counsel stated that the question of raising character was discussed with Ms Vella and she agreed that it would not be raised. This evidence was not disputed. 5. Third, trial Counsel provides his recollection of his assessment of the likely strength of the evidence available to the Crown to rebut evidence of Ms Vella's good character. Consistent with Nudd, a consideration of such assessments should be avoided so "far as justice permits" (Nudd at [10]). In light of the material falling within the first two components of Counsel's affidavit it is not necessary to consider this aspect of the affidavit further. 6. In relation to the first component Counsel's affidavit stated that included in the Crown brief was a statement from one of the tenants of one of Ms Vella's properties alleging that Ms Vella had incurred a debt of $1,300 on her credit card without her consent. At the hearing of this appeal Senior Counsel for Ms Vella conceded that this material went "squarely to [his] client's honesty". 7. Further, the material tendered at the trial was capable of suggesting that Ms Vella was not declaring all her income to the taxation authorities. Tendered as part of the Crown case were her notices of assessment for, inter alia, the financial year ended 30 June 2009. It recorded that her declared taxable income for that year was $27,990. In the client questionnaire that she filled out at Mr Wang's request Ms Vella stated that her teaching income for the financial year was $27,880.00 and investment income was $50,000. This latter figure was consistent with evidence from Ms Kodrun that she paid $300 in cash direct to Ms Vella directly each week for rent at the Cabarita premises and Ms Woodward's evidence that she was collecting rent for the Cabarita premises and from the Strathfield premises of up to $2,800 per week. Mr Siskos estimated that the rent received from the Strathfield property was "about nine hundred, a thousand dollars a week". Allowing for deductions for expenses these figures are reconcilable with the estimate of $50,000 for net investment income. However this only reinforces the discrepancy between the taxable income and the income estimate provided to Mr Wang. In his affidavit, Ms Vella's trial Counsel recounted that Ms Vella was not able to explain the discrepancies in her financial records and affairs generally. 8. At the hearing of this appeal Senior Counsel for Ms Vella contended that none of this material "really come to anything of any substance" in the absence of any records about how much rent was paid. I disagree. There was a blatant inconsistency between Ms Vella's assessed income and the income she disclosed in the insurance questionnaire. This inconsistency was capable of supporting a submission that she was understating her income to the taxation authorities. The evidence of the cash she received for rent was at the very least capable of supporting that submission. The opportunity to make that submission may have arisen if there had been an attempt to adduce evidence of Ms Vella's supposed good character. 9. Also included in Counsel's brief was a letter from Ms Vella to the Commonwealth Bank in which she outlined how she had withdrawn over $66,000 from a self-managed superannuation fund in the joint names of herself and Mr Siskos for her personal expenses. This appears to have been an improper use of superannuation funds and, more importantly, a partial appropriation by her of funds of Mr Siskos. Ms Vella's trial Counsel was unaware of whether the Crown possessed the letter but for the purposes of the present inquiry its potential availability to the Crown is more than sufficient to lead to the conclusion that no miscarriage of justice was occasioned by not leading such evidence as there was of Ms Vella's good character. 10. Ms Vella's trial Counsel also identified other material in the Crown brief which indicated that Ms Vella was manipulative and prone to expend sums available to her by others on personal expenditure. In the context of a Crown case that alleged she manipulated Mr Siskos to agree to kill himself to secure a payment of his life insurance policy, this material was potentially very damaging. 11. It follows that, if Ms Vella had attempted to raise evidence of her good character in the form of her lack of criminal convictions since her late teenage years, then there was a real potential for the Crown to deploy material that was capable of demonstrating that she was dishonest in financial matters. At the very least this could have led to a distracting and potentially damaging inquiry into her conduct on a number of fronts. As she did not give evidence, the only benefit to her from raising character was the provision of a direction to the jury to the effect that, if they considered her to be of good character, then they should take that into account in assessing the likelihood that she committed the offences with which she was charged. The benefit of that direction was very likely to be outweighed by the cost incurred by an inquiry into her character. No miscarriage of justice was occasioned by the failure to raise character evidence. 12. The written submissions in support of this ground of appeal also contend that Ms Vella's trial Counsel displayed "flagrant incompetence" in not adducing evidence of the good character of Mr Siskos. Mr Siskos' position is addressed below. However the contention that one Counsel in a joint trial displays incompetence in not adducing character evidence concerning their client's co-accused in the face of an apparently considered decision by that person's Counsel not to lead such evidence is baseless. Leaving aside all other considerations, the opening up of unnecessary divisions between the cases for the two accused has a tendency to damage both cases. 13. As this ground does not purely raise a question of law, leave is required to raise it. I propose that leave to raise ground 5 be granted but would reject the ground. Ground 6: the "additional evidence" of Ms Henriette Scheepers 1. Ground 6 of Ms Vella's amended grounds of appeal is expressed as follows: "[His Honour] erred in allowing the additional evidence to be called from Ms Henriette Scheepers, that was not included in her statement made to the Police, in circumstances where Counsel for [the Appellant] and Counsel for Mr Peter Siskos sought a direction that the Jury be discharged in the absence of expert evidence in their own cases to meet this new additional evidence." 1. As noted, Ms Scheepers was employed as a senior underwriter by OnePath. She was called on the sixth day of the trial. Ms Scheepers stated that she assessed the application for a policy relating to Mr Siskos and Ms Vella and determined to approve both policies on behalf of OnePath. The "additional evidence" to which this ground of appeal is directed is the following part of her evidence in chief: ""Q. And can I ask you this, if information had been provided to you that a person had the intention of committing suicide, would you grant a policy if you received that information? A. If you receive a risk that looks like if it's a risk for us of suicidal risk, we don't offer cover at all. Q. And if you were informed that a person did in fact intend to terminate their life would you grant a policy? A. No because it would fall into that group that we don't offer cover. Q. And was that the position back in 2010? A. Yes it was and it still is." 1. It is necessary to outline how this additional evidence came to be adduced. A statement from Ms Scheepers was served in advance of the trial but it did not include the additional evidence. At some point after the trial commenced the Crown advised that it proposed to adduce the additional evidence. On the fifth day of the trial the trial advocate appearing for the Crown advised his Honour that there was objection to the additional evidence being adduced. 2. Counsel for Ms Vella did not initially raise any objection. Instead he noted from a "purely precautionary … point of view" he wanted to know what the evidence was and reassurance as to Ms Scheepers' "authority" to say it. However, trial counsel for Mr Siskos submitted that the "evidence ought not be allowed and in the alternate it if it is to be allowed before it is allowed, my application is for the matter to be adjourned, perhaps necessarily with the discharge of the jury". He submitted that the adducing of the additional evidence meant that there was a necessity to obtain a "suitable expert … opinion" because: "… it is not simply a matter of what [Ms Scheepers] might post fact assume the position to be, as opposed to a diligent exploration of the Insurance Contracts Act, the duty of disclosure what might reasonably be within contemplation of an insurer and the interplay of a policy that provides specifically for a risk, the unusual risk of death caused by intentional act, when there is a preclusion period …". 1. Ms Scheepers was called to give evidence on a voir dire. In chief she gave the additional evidence. Under cross examination by Counsel for Ms Vella, Ms Scheepers was generally castigated for her unfamiliarity with the Insurance Contracts Act 1984 and for not considering its requirements before giving her evidence as to what she would have done had the intention of Mr Siskos been disclosed prior to the life insurance policy being written. This questioning continued despite her having stated at the outset that she was only explaining her approach to underwriting and not addressing the different issue as to the avoidance of a policy on the basis of a fraudulent non-disclosure or the refusal of a fraudulent claim: "Q. So you are not saying that you would have not entered into, OnePath would not have entered into the policy on the basis of fraud by failing to disclose, is that right? A. That's how the claims people will assess. I can't make a definite comment on that, I'm not a claim assessor, I'm on the underwriting side when they're entering the contract." (emphasis added) 1. After Ms Scheepers' evidence on the voir dire concluded, Counsel for Mr Siskos contended that notification that the additional evidence of Ms Scheepers would be adduced was given too late and that meant that his client was "precluded from [taking up] the opportunity in a timely way to obtain independent expert opinion as to how these decisions are arrived at". Counsel for Ms Vella supported that position. He contended that Ms Scheepers' evidence was "broadly unsatisfactory" because of the "contractual nature of the issues" which were said to be beyond Ms Scheepers' "contemplation" and knowledge. 2. The trial judge gave short ex tempore reasons allowing the Crown's application to adduce the evidence. His Honour noted that both Counsel had applied for an adjournment to adduce expert evidence in response to the additional evidence of Ms Scheepers and, if granted, that this would necessitate a discharge of the jury. His Honour noted the submission of Counsel for Mr Siskos as to whether there was a duty on the part of Mr Siskos to disclose "an agreement to commit suicide" and that there was an issue as to whether the exclusion period of thirteen months "exists to deal with such contingencies". However his Honour (correctly) noted that Ms Scheepers was not giving evidence as to the extent of Mr Siskos' duty of disclosure but only "whether the policy would have been approved on a commercial basis". His Honour continued: "The question of whether the applicant had a duty to disclose the agreement to terminate his life is not sought to be answered by this witness by the Crown. Moreover it would appear not only to be outside her area of expertise but also not part of the decision as to whether to approve or not approve a policy. I would note at the commencement of the policy itself, a duty of disclosure warning that clearly states the duty includes any matter which is relevant to the insurer's decisions. Whether the exclusion period renders the obligation no longer applicable is not evidence sought to be adduced from this witness. The reasons advanced for an adjournment in my view [do] not arise in relation to this evidence. The application for adjournment is also refused. I should add it follows the Crown may not adduce evidence from this witness as to whether or not the accused had a duty to disclose an agreement to terminate his life." 1. On behalf of Ms Vella three points were raised in support of the contention that his Honour erred in allowing the Crown to adduce the additional evidence. The first is that the subject matter of Ms Scheepers' evidence was said to be a "matter of expert opinion", yet she was not shown to be an appropriately qualified expert. Second it was submitted that his Honour erred in not addressing various provisions of the Insurance Contracts Act said to be relevant to her evidence and whether it should be adduced. Third it was contended that the late adducing of the evidence was in breach of the Crown's duty of disclosure and this warranted its exclusion. 2. In relation to the first contention, it was not submitted to his Honour that Ms Scheepers' evidence was opinion evidence based on specialised knowledge within the meaning of s 79 of the Evidence Act 1995 (NSW) and it should be rejected because she was not appropriately qualified. Instead it was submitted to his Honour that to respond to it each of the accused needed to obtain expert evidence and that necessitated both an adjournment of the trial and a discharge of the jury. His Honour rejected that contention because his Honour (correctly) concluded that the submission was based on a misconception that Ms Scheepers' additional evidence was directed to the extent of Mr Siskos' duty to disclose his intention to commit suicide, and the remedies available to OnePath if it issued a policy based on a non-disclosure of that matter. Instead his Honour found that the additional evidence concerned OnePath's decision to enter into a policy in the first place. Thus his Honour concluded that the "reasons advanced for the adjournment", namely the necessity to obtain expert evidence, did not "arise in relation to this evidence". 3. In any event the additional evidence of Ms Scheepers was not "opinion evidence" and thus no question of whether it was sufficiently based on any specialised knowledge of Ms Scheepers within the meaning of s 79 of the Evidence Act arose. 4. Section 79 operates as an exception to the "opinion rule" in s 76 which precludes evidence of an opinion being admissible to "prove the existence of a fact about the existence of which the opinion was expressed". A number of decisions have held that a statement by a witness of what they would have done in a hypothetical situation is not opinion evidence. In Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 ("Allstate") Lindgren J held that evidence from a witness stating what would have been the effect on a recommendation he made relating to an investment had he known certain details about certain liabilities arising under guarantees was not opinion evidence. His Honour noted that "opinion" was not defined in the Evidence Act but in "the context of the general law of evidence, 'opinion' has been defined as 'an inference from observed and communicable data'" and this form of evidence was not of that character (at pp 75–76). 5. Allstate was followed by Finn J in Hughes Aircraft Systems International v Airservices Australia (No. 3) (1997) 80 FCR 276, and by the Full Federal Court in Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 at [65] and La Trobe Capital & Mortgage Corp Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4 at [53] to [58] per Finkelstein J with whom Jacobson and Besanko JJ agreed ("La Trobe"). In La Trobe at [57] Finkelstein J extended Allstate to a witness with appropriate authority testifying to what their corporate employer would have done in a hypothetical set of circumstances. 6. The reasoning in Allstate was also approved by the Court of Appeal in Seltsam Pty Ltd v McNeill [2006] NSWCA 158 at [118] to [123] per Bryson JA (with whom Handley and Tobias JA agreed). At [123] his Honour concluded: "At the heart of the controversy, I do not find it possible to see evidence given by a person about his state of mind, in an actual or hypothetical situation, as an opinion. The state of a person's mind is a fact and remains a fact whether what is under the discussion is an actual state of mind, or the state in which a person's mind would be in some contingency which has not happened." 1. In oral submissions in this Court Senior Counsel for Ms Vella submitted that Allstate and the line of cases that has followed it can be distinguished because they were concerned with "reliance", that is with one party to civil litigation seeking to establish what would have occurred had some fact or matter been disclosed to it or some other entity in the course of a commercial transaction and the issues in this case were different. However in this case the additional evidence of Ms Scheepers was adduced by the Crown to demonstrate a form of "reliance" on the part of OnePath as part of proving the alternative count of obtaining a benefit by deception. To prove that a benefit was obtained it was necessary to demonstrate that each of Ms Vella and Mr Siskos in fact "obtained a financial advantage" based on their false representation that they had applied for an insurance policy in "good faith". To do so the Crown had to demonstrate, inter alia, that had they disclosed Mr Siskos' intention to commit suicide then no policy would have been written. 2. However it was not an essential part of the Crown case on count 1 that it demonstrate that, had OnePath been told that Mr Siskos intended to commit suicide, it would not have underwritten a policy over his life. As has been explained, the underlying premise of the Crown case was that the agreement of the two applicants not to disclose Mr Siskos' intention to commit suicide to OnePath was dishonest because both accused knew that they were obliged to disclose that to OnePath. Ms Scheepers' evidence appears to have little, if any, relevance to that issue. As noted at [28], at least by the end of the trial it was not a live issue. 3. The second contention noted in [114] can be dealt with briefly. During argument before the trial judge reference was made to provisions of the Insurance Contracts Act dealing with an insured's obligations of disclosure and regulating an insurer's right to avoid a policy on the basis of a non-disclosure by or on behalf of the insured. The written submissions in this court identified the relevant provisions as ss 21, 54, 55 and 55A which respectively concern the insured's duty of disclosure, restrict the circumstances in which an insurer can refuse to pay claims, specify that an insurer has no additional rights in respect of claims to those regulated by s 54, and confer standing on the Australian Securities Investment Commission to bring proceedings in respect of breaches of the Act. 4. In his judgment permitting the Crown to adduce the additional evidence , his Honour referred to the "legislative framework of insurance contracts" but did not address the specific provisions. His Honour was not obliged to do so. To the contrary his Honour correctly recognised that those provisions were irrelevant because they were invoked as part of a submission that incorrectly characterised Ms Scheepers' additional evidence as addressing the insured's duty of disclosure and an insurer's remedies if that duty was breached. Nothing in the Insurance Contracts Act, including the provisions referred to in this Court, affected OnePath's underwriting decision about whether cover was to first be offered to a person who disclosed their intention to commit suicide. Those provisions are only engaged if an insurance contract was entered into, a claim was subsequently made and the insurer sought to avoid the policy on the basis of an alleged non-disclosure, (ss 21 and 29) or possibly deny the claim on the basis of some act or omission of the insured or another person (s 54). They are predicated on the existence of an insurance contract, whereas Ms Scheepers' evidence concerned whether such a contract would have come into existence had Mr Siskos' intentions been disclosed. 5. The third contention noted in [114] in effect complains about the exercise of his Honour's discretion to allow the adducing of this evidence without it being previously notified. It seems that in considering whether or not to refuse to admit the additional evidence and whether or not to adjourn the trial his Honour was considering the exercise of the discretionary powers conferred by ss 146(1) and (3) of the Criminal Procedure Act 1986 which respectively provide: "146 Sanctions for non-compliance with pre-trial disclosure requirements (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for pre-trial disclosure imposed by or under this Division. … (3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for pre-trial disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment." 1. The premise of the argument in this Court was that because Ms Scheepers' statement did not contain the additional evidence there had been a non-compliance with s 142(1)(c) of the Criminal Procedure Act in that there had not been, in substance, service of a "copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial". For the purposes of dealing with this ground of appeal I will accept that premise. 2. The written submissions in support of this aspect of ground 6 did not identify any error of the kind identified by House v R [1936] HCA 40; 55 CLR 499 at 505 in the exercise of his Honour's discretion. One part of the submissions appeared to assert that the prosecution deliberately failed to notify each of the applicants of its intention to adduce the additional evidence (the "prosecution chose not to disclose"). If material was deliberately withheld from the defence and then produced late then that would be a matter relevant to the exercise of the powers conferred by s 146(1) and (3). However no such contention was made, much less substantiated, before the trial judge. It follows that there was no error on his Honour's part in failing to address such a contention. Instead the matter proceeded on the basis that the failure was inadvertent in the sense that the Crown overlooked the necessity to obtain such evidence (which is not surprising given that count 2 was only added to the indictment just prior to the trial commencing). 3. In oral submissions in this Court, Senior Counsel for Ms Vella submitted that the late notice of the fact that the evidence would be adduced prevented the taking of a "number of interrogatory steps" including subpoenaing OnePath and "obtain[ing] other evidence from people in the trade". The prejudice occasioned to the accused by a late notification of an intention to adduce evidence is undoubtedly a matter to be considered in the exercise of the powers conferred by s 146(1) and (3). However the suggestion that expert evidence needed to be obtained was made to his Honour and correctly rejected. As stated it was based on an incorrect characterisation of the nature and effect of Ms Scheepers' evidence. Otherwise one means of challenging Ms Scheepers' additional evidence would have been to subpoena OnePath's underwriting file or underwriting guidelines. However no submission that the applicants were prevented from doing so was made to the trial judge and it follows that his Honour did not err by failing to address it. If it had been made I expect his Honour would have accommodated it by allowing short service of a subpoena although it is not necessary to consider this further. No error affecting the exercise of his Honour's discretion to allow the additional evidence of Ms Scheepers has been demonstrated. 4. As this ground is not purely a question of law, leave is required to raise it. I propose that leave to raise ground 6 be granted but would reject the ground. Conclusion on Ms Vella's conviction appeal 1. It follows that I would dismiss Ms Vella's appeal against her conviction. Conviction appeal – Mr Siskos 1. Three grounds of appeal are raised in support of Mr Siskos' application for leave to appeal from his conviction. He does not contend that his conviction was unsafe or unsatisfactory. 2. Ground 1 of Mr Siskos' appeal is the same as ground 4 of Ms Vella's conviction appeal. No submissions of any substance beyond those addressed above were made in support of this ground. I would refuse leave to raise it for the reasons already given. 3. Ground 2 of the appeal is similar to ground 5 of Ms Vella's appeal namely that "he experienced a miscarriage of justice by reason of flagrantly incompetent legal representation which resulted in the jury being unaware that [Mr Siskos] had any criminal convictions for approximately thirty (30) years and/or was a person of good character." 4. The relevant principles applicable to the determination of such a complaint are set out at [89] to [94]. 5. The written submissions in support of this ground contend that it "is difficult to imagine what 'tactical purpose' could have been served" by trial Counsel for Mr Siskos not adducing evidence that "the Appellant had any criminal convictions for thirty (30) years" or "lay evidence as to his character". The lay evidence that could have been adduced is not identified. It is true that by the time of the trial Mr Siskos has not been convicted of any offence for 28 years. However, the complete position was that in April 1981 Mr Siskos was convicted of illegally using a motor vehicle and two counts of stealing. He was fined and given a recognizance under former s 558 of the Crimes Act. In September 1982 he was convicted of two charges of malicious injury and fined. Between 1983 and 1985 he received a number of convictions for traffic offences and possession of Indian hemp. Fines were imposed for all these offences. 6. As was the case with Ms Vella's appeal an affidavit was read from trial Counsel for Mr Siskos as well as from the solicitor instructing at the trial. I have treated those affidavits in a manner consistent with the approach stated in [94] to [98]. One matter outlined in trial Counsel for Ms Siskos' affidavit is that prior to the trial he emailed the Crown Prosecutor inquiring, inter alia, as to whether, if good character was sought to be raised, the Crown would seek to rely on Mr Siskos' criminal record. At or about the commencement of the trial the Crown Prosecutor confirmed that the Crown would seek to rely on those convictions. In my view this aspect of the affidavit is a matter that regard can and should be had to in determining this ground of appeal. 7. As noted, Mr Siskos gave evidence. Clearly whether or not the jury accepted his evidence was crucial to his chances of an acquittal. The prospect of his being questioned in relation to convictions including theft and illegal use of a motor vehicle had the real potential to adversely affect his credit before the jury and distract its attention from evaluating his denials of the critical parts of the Crown case. That conclusion is sufficient to warrant the conclusion that no miscarriage of justice was occasioned by the "failure" of his trial Counsel to adduce evidence that he had not received any convictions in the 28 years prior to the trial. 8. I propose that leave to raise this ground be granted but the ground be rejected. 9. Ground 3 of the appeal is the same as ground 6 of Ms Vella's appeal against her conviction. No submissions of any substance beyond those addressed above were made in support of this ground. For the reasons already given I propose that leave to raise the ground be granted but the ground be rejected. Conclusion on Mr Siskos' conviction appeal 1. It follows that I would dismiss Mr Siskos' appeal against his conviction. Sentence appeals – the Sentencing Judgment 1. In the sentencing judgment his Honour described the facts surrounding the conspiracy in a manner consistent with what is set out above. His Honour then addressed the balance of the sentencing exercise as follows. 2. First, his Honour addressed the subjective circumstances of Ms Vella, some of which have already been noted. A pre-sentence report described Ms Vella's childhood history as "characterised by loneliness and apparent abandonment". Ms Vella was refused bail following her conviction. The report stated that while in custody Ms Vella had been "frightened" and experienced "difficulty adjusting to her situation". His Honour noted and accepted a psychologist's report which described her as being "dramatic, histrionic and focussed on her own sufferings and injustices". The report also described her as having a "history of intermittent periods of depression" and that she was "currently experiencing ongoing difficulties" with depression, and "had problematic symptoms of stress and anxiety". 3. Second, his Honour described Mr Siskos' personal circumstances. Mr Siskos remained on bail after his conviction and prior to sentence. His Honour noted that he had continued to work at the boarding house collecting rent on behalf of Ms Vella, and assisting lodgers. His Honour noted his work history, which included the period as a security officer as well as a store person. His Honour referred to him as experiencing anxiety, depression and noted that he was currently in the care of a psychologist. A psychologist's report was tendered on his behalf. His Honour noted that the report did not suggest that the relationship between Mr Siskos and Ms Vella was "a harmful, co-dependent relationship" and referred to Mr Siskos as having a "positive and stable sense of worth". In view of the evidence at the trial, his Honour described the findings of the report as "somewhat surprising". 4. Third, his Honour noted that in sentencing for a conspiracy to commit a (single) offence it was appropriate to have regard to the statutory maximum for that offence (see The Queen v Hoar [1981] HCA 67; 148 CLR 32 at 39). The maximum penalty for the offence of fraud in s 192E of the Crimes Act 1900 is ten years imprisonment. 5. Fourth, his Honour addressed the seriousness of the offence. His Honour noted that the "motive for committing the offences was one of greed" and contrasted that with a motive of "need". His Honour also noted that the offence "occurred over a relatively long period of time and there is evidence of the degree of planning involved as opposed to an impulsive offence". His Honour concluded as follows: "Notwithstanding the fact that no loss was suffered, the offence was objectively serious given the degree of planning, the amount of money involved, the motive for the conspiracy being one of greed, and the nature of the agreement itself, that being one of the conspirators would take his own life necessarily must lead to the conclusion that the offence is objectively very serious and more towards the higher end of the scale for offences of this type." 1. This characterisation of the seriousness of the offence is the subject of complaint by both Ms Vella and Mr Siskos. 2. Fifth, his Honour also addressed the role of each offender. His Honour accepted that Ms Vella had "the ascendancy in the relationship and was the primary driving force in the conspiracy" and that Mr Siskos "was acting in order to please [Ms] Vella". His Honour found that there was "overwhelming evidence that Ms Vella exerted considerable control over Peter Siskos over many years". His Honour concluded that: "… while [Ms Vella] was to be the sole beneficiary of the agreement, [Mr Siskos'] fate was to end his own life. Whilst her desire was to enrich herself, he expressed feelings consistent with accepting her view that he acted as a weight upon her." 1. Further, his Honour found that a significant fact in the conspiracy being discovered was Mr Siskos' decision "not to proceed with his suicide or his prolonged hesitation in doing so"), while Ms Vella "displayed no such hesitation". His Honour contrasted the unravelling of this conspiracy with the situation where co-conspirators voluntarily agree to end their agreement. 2. Sixth, although his Honour accepted that the case, especially so far as it concerned Mr Siskos, was "extremely unusual", his Honour found that his lack of remorse and the objective seriousness of the offence warranted a conclusion that the only sentence that could be imposed upon him was full time imprisonment. 3. Seventh, his Honour found that, given each of their relatively minor criminal records, their personal circumstances and their need for ongoing counselling upon their release, a finding of special circumstances was warranted. In the case of Ms Vella his Honour stated that the reduction in non-parole period would be "modest" because of the "length of the sentence and the need to ensure that the non-parole period adequately reflect[ed] the seriousness of the offence" as well the need to address "specific and general deterrence". This aspect of the sentencing judgment is the subject of ground 4 of Ms Vella's application for leave to appeal against her sentence. Ms Vella's application for leave to appeal against sentence 1. Five grounds are advanced in support of Ms Vella's application for leave to appeal her sentence. Grounds 1 and 5: Objective Seriousness of the Offence 1. Grounds 1 and 5 concern his Honour's finding as to the seriousness of the offence. Ground 1 contends that his Honour erred in finding that the offence was "more towards the higher end of offences of this type", and erred in concluding that the offence "occurred over a relatively long period of time". 2. The written submissions in support of this ground focus on his finding that the offence "occurred over a relatively long period of time" (see [144]). The written submissions assert that the Crown's case was that the "commencement or the beginning of the plan" was in approximately February to March 2010, being the time at which Ms Vella made her statement to Ms Shi noted in [38] above. The submissions then note that "on one view of the facts, the act of conspiracy was complete by the time the policy … was issued on 11 August 2010" with the consequence that the duration of the offence was "something in the vicinity of six months meaning that the offence did not occur over a relatively long period of time". 3. These submissions identify both a wrong starting point and end point of the offending by Ms Vella. It was a necessary component of the Crown case that the agreement the subject of the conspiracy was formed no later than when Ms Vella and Mr Siskos attended upon Mr Wang in late June 2010 (although it could have been earlier). It was also the Crown case that each of them continued to adhere to that agreement until the time that Mr Siskos failed to attend work in October 2011, being shortly after a conversation between him and Ms Vella about obtaining the Malta money which was owed to her by Mr Appleby (see [50]). The Crown case was put to the jury in those terms and his Honour was correct to sentence Ms Vella on that basis. 4. While the conspiracy was completed by the time of the application for the policy, the offending continued for so long as each of Ms Vella and Mr Siskos continued to adhere to their agreement (Agius v R [2013] HCA 27; 248 CLR 601 at [30]). The period from June 2010 to October 2011 is sufficiently long to answer the description given by his Honour, namely a "relatively long period of time". 5. I would reject ground 1 of Ms Vella's application for leave to appeal against her sentence. 6. Ground 5 contends that the sentencing judge erred in finding that the offence was objectively serious in that, inter alia, one of the conspirators would "take his own life" and was therefore, "towards the higher end of the scale of offences of this type". It asserts that this was "an error of law made in circumstances where suicide is no longer a criminal offence and does not attract any criminal sanction". 7. The written submissions in support of this ground make no reference to the particular complaint referred to in the ground, namely that suicide is no longer a criminal offence. In any event, that aspect of the complaint has no substance. As explained above, to convict Ms Vella and Mr Siskos of a conspiracy to defraud, the jury had to be satisfied beyond reasonable doubt that they entered the relevant agreement and that they intended to give effect to it. In this case that meant that the jury were satisfied that they intended to give effect to an agreement pursuant to which Mr Siskos would take his own life. A consideration of the objective seriousness of a conspiracy to defraud includes a consideration of the dishonest means employed. The dishonest means by which this conspiracy was to be effected included, at least so far as Ms Vella was concerned, a form of cruel exploitation of Mr Siskos by her. 8. The written submissions in support of this ground attack so much of his Honour's assessment of the overall seriousness of the offence that relates to the duration of the conspiracy, a matter that has already been addressed. They also point out that no defrauding in fact occurred. The passage noted in [144] above reveals that his Honour was cognisant of that but noted that only came about because Mr Siskos hesitated in giving effect to their agreement. 9. No error has been demonstrated in relation to his Honour's assessment of the seriousness of the offence. I would reject ground 5. Ground 4: Special Circumstances 1. Ground 4 of Ms Vella's application for leave to appeal against her sentence contends that his Honour erred in that, having found special circumstances, his Honour only applied a "modest" reduction in the non-parole period, being a period of one month. 2. The reasoning of the sentencing judge in respect of special circumstances is described in [149]. This ground of appeal wrongly asserts that in giving effect to this finding his Honour only reduced the non-period by a period of one month. The total sentence imposed by his Honour was six and a half years, that is seventy-eight months, and the non-parole period was four years and three months, that is fifty-one months. If his Honour had not made a finding of special circumstances, then the minimum non-parole period that could have been imposed upon Ms Vella was fifty-eight and a half months, being three-quarters of seventy-eight months: Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"); s 44(2). Otherwise, his Honour's reference to other sentencing criteria in fixing a non-parole period even though a finding of special circumstances had been made was entirely consistent with principle (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] and [65] per Spigelman CJ). No error of the kind referred to in House v R [1936] HCA 40; 55 CLR 499 at 504-505 has been demonstrated. 3. I would reject ground 4 of Ms Vella's application for leave to appeal against her sentence. Grounds 2 and 3: Manifestly Excessive 1. Ground 2 of the sentencing appeal contends that the sentence imposed upon Ms Vella was manifestly excessive "having regard to the Appellant's history and background, in circumstances where [the sentencing judge] made no reference to the mitigating factors contained in s 21A of [the Sentencing Act]". Ground 3 of the sentencing appeal was related to ground 2 and asserts as follows: "That, in circumstances where it cannot be determined how Townsden DCJ reached the result embodied in the sentence, imposed upon the appellant, which is plainly unreasonable or unjust, it can be [inferred] that in some way, that there has been a failure to properly exercise the discretion, which has resulted in a substantial wrong, which substantial wrong is apparent when comparing the sentence, imposed by Townsden DCJ with sentences imposed by the Courts for offences of this nature." 1. These grounds can be dealt with together as they both involve a complaint of manifest excess. 2. Part of the complaint of manifest excess in relation to ground 2 builds upon the other asserted errors in the sentencing process, especially his Honour's conclusion that the offending was "towards the higher end of offences of this type", a proposition I have already rejected. 3. The balance of the submissions in relation to ground 2 contends that the sentencing judge failed to either consider or attach appropriate weight to certain factors, namely Ms Vella's age, her relative lack of previous criminal history, the fact that the commission of the offence was said to be an "uncharacteristic aberration and totally out of character", that her risk of reoffending was minimal, that the attempted execution of the crime was clumsy and no one was defrauded, and that she had had intermittent periods of depression, so that the injury, emotional harm, loss or damage caused by the offence was not substantial. 4. However, the sentencing judge clearly did consider Ms Vella's age, her criminal history, and the evidence concerning her psychological condition. Further, the nature of the offence did not reveal that its commission was "an uncharacteristic aberration and totally out of character". To the contrary, the nature of the Crown case was that the commission of the offence was totally consistent with what was known about her usual pattern of behaviour. The contention that his Honour failed to have regard to the fact that the attempted execution of the crime was "clumsy and no one was defrauded" is another means of re-agitating his Honour's finding as to the serious nature of the offence, a finding that has already been upheld. 5. Ground 3 in part complains that it cannot be determined how the sentencing judge "reached the result embodied in the sentence". This complaint travels nowhere. In general, a sentencing judgment does not reveal a mathematical relationship between the weighing of the various factors and the length of the sentence but instead it shows the process of "instinctive synthesis" of the various factors involved in sentencing and the exercise of a value judgment as to the appropriate sentence (Markarian v R [2005] HCA 25; 228 CLR 357 at [51] per McHugh J). 6. The submissions in relation to ground 3 referred to the sentences imposed in four other cases of conspiracy to defraud, and submit, by reference to those sentences, that the sentence imposed upon Ms Vella was manifestly excessive, namely Page v R [2007] NSWCCA 175 ("Page"), R v Wasson [2004] NSWCCA 200 ("Wasson"), R v Lewis [2003] NSWCCA 375 ("Lewis") and R v Walsh [2000] VSC 114 ("Walsh"). 7. In Page this Court dismissed an appeal against a total sentence of five years imprisonment with a non-parole period of two years and six months for a conspiracy to defraud. The appellant had participated in a conspiracy to swindle $397,500 from an elderly woman over a period of years by first convincing her that some unsolicited work on her roof had been paid for, although it had not been done, and then later requesting or demanding further sums from her on the basis that each payment would assist in recovering the amount she had been overcharged for the roof repairs. The Court held that the appellant was "deserving of a significant term of imprisonment" (at [69] per McClellan CJ at CL with whom Howie and Hall JJ agreed). Page is of no assistance to Ms Vella. 8. In Wasson the applicant for leave to appeal was sentenced to two years imprisonment with a non-parole period of eighteen months for conspiring to dishonestly obtain a benefit by deception. The applicant and her co-conspirators had falsely reported to the police that a motor vehicle owned by one of them was stolen with the intention of destroying it and making a claim for compensation on the insurer. The written submissions in support of this ground assert that this Court in Wasson reduced the sentence of imprisonment for two years to a sentence of imprisonment for twelve months. This is incorrect. The appeal was dismissed. The submissions may have been intending to refer to Lewis in which this Court reduced the sentence of one of Wasson's co-conspirators to twelve months on the basis that they had "strong subjective features" (Lewis at [12]). In any event, the maximum sentence for the equivalent statutory offence in Wasson and Lewis was five years imprisonment. Neither case affords any assistance to Ms Vella. 9. In Walsh the offender was found guilty of conspiring to defraud the Nauru Phosphate Royalties Trust of approximately $61 million, and three counts of perverting the course of justice in relation to the investigation and prosecution of proceedings in relation to that offence. He was sentenced to a period of seven years imprisonment (Walsh at [57]) on the conspiracy to defraud count. The judgment in Walsh does not reveal what the maximum penalty for the equivalent statutory provision was. 10. None of these cases proffer any assistance to Ms Vella. Each turns upon their own facts and a consideration of the maximum penalty for the equivalent statutory offence. Ms Vella's case was unusual and a resort to other cases of conspiracy to defraud is of little assistance. She pursued a conspiracy to extract a large sum from an insurer through deception and the ruthless exploitation of her co-conspirator. Given his Honour's findings on sentence, including the characterisation of the offence, I do not consider that the sentence was manifestly excessive. 11. It follows that I would reject grounds 2 and 3 of Ms Vella's application for leave to appeal her sentence. Conclusion on Ms Vella's sentence appeal 1. Accordingly, I propose that Ms Vella be granted leave to appeal her sentence, but the appeal be dismissed. Mr Siskos' application for leave to appeal against sentence 1. Mr Siskos relies on three grounds in support of his application for leave to appeal against his sentence. They can be dealt with briefly. He does not contend that the sentence imposed upon him was manifestly excessive. 2. Mr Siskos' first ground of appeal contends that his Honour erred in finding that the motive for committing the offence was one of greed. The written submissions in support of this ground refer to that part of the sentencing judgment which is extracted in [144], and contend that his Honour erred because "the applicant's motivation was not greed, but an irrational motive to facilitate [Ms] Vella's greed by killing himself". 3. This ground of appeal misstates the effect of the sentencing judgment. In the passage extracted in [144], his Honour did not attribute to Mr Siskos a motivation of greed, but instead stated that the "motive for the conspiracy [was] greed". In context, this statement was a reference to the object of the conspiracy which was to extract money from the insurance company and to the fact that the money was for the benefit of Ms Vella who had no real "need" for the funds. His Honour clearly recognised the subservient aspect of Mr Siskos' participation in the passages referred to in [146] to [147]. 4. I would reject ground 1 of Mr Siskos' application for leave to appeal his sentence. 5. Ground 2 of Mr Siskos' application for leave to appeal contends that his Honour erred in finding that the offence was aggravated by a "degree of planning". 6. This ground attacks so much of his Honour's sentencing judgment which refers to the offence as having "occurred over a relatively long period of time and there is evidence of a degree of planning involved as opposed to an impulsive offence". The written submissions in support of the ground emphasised the simplistic nature of this conspiracy and contended that the "degree of planning in the applicant's case is at the lowest end". It was submitted that the only relevant action of Mr Siskos was to attend a meeting of an insurance broker, agree to an increase in the coverage for life insurance, and sign documentation. 7. To the extent that this ground complains about his Honour's finding as to the "relatively long period of time" over which the offending occurred then it has already been addressed ([153]ff). Otherwise this ground of appeal overstates his Honour's finding. His Honour's reference to the "degree of planning involved" contrasted this offence with an "impulsive offence". Such an assessment was clearly open to his Honour given that the jury accepted the Crown case that Mr Siskos and Ms Vella attended upon the insurance agent in June 2010, and then waited out the thirteen month preclusion period before Mr Siskos took steps to end his own life. His Honour did not refer to this as an aggravating factor for the purposes of s 21A(2) of the Sentencing Act, but merely contrasted it with a more impulsive conspiracy entered into on the spur of the moment as part of the assessment of the objective seriousness of the offence. 8. I would reject ground 2 of Mr Siskos' application for leave to appeal his sentence. 9. Ground 3 of Mr Siskos' sentencing appeal complains that his Honour erred in his assessment that the objective seriousness of his offending was "more towards the high end of the scale". 10. This ground of appeal also refers to the finding of his Honour which is to be found at the end of the passage extracted at [144]. The written submissions in support of this ground invoke the complaints made in relation to grounds 1 and 2. They also contend that suicide is not unlawful and is usually considered as something addressed by mental health professionals and warranting a degree of sympathy. The written submissions noted that there was no loss to the insurance company. The submissions contended that "whilst a finding of high end criminality may have been open to his Honour with respect to Ms Vella, it was not a reasonably open finding with respect to [Mr Siskos]". 11. In my view this submission also misstates the effect of the sentencing judgment. In characterising this offence as at the "high end of the scale" his Honour was characterising the object and scope of the conspiracy which the applicant and Ms Vella had entered into. The conclusion that it was a very serious example of this offence was reinforced by the fact that a substantial amount of money was designed to be extracted from an insurance company, and that this was to be undertaken by one co-conspirator convincing another to commit suicide. The unusual nature of the applicant's involvement was recognised by his Honour in the passages noted in [146] to [147]. This was an example of a conspiracy which was very serious but the sentencing exercise required that careful attention be paid to the need to address the role each co-conspirator played in the commission of the offence. The difference in the sentences imposed on Mr Siskos and Ms Vella reveals that his Honour appreciated that such an approach was required. 12. I would reject ground 3 of Mr Siskos' application for leave to appeal his sentence. Orders 1. In relation to the applicant Esther Vella the orders I propose are: 1. The applicant be granted an extension of time to appeal her conviction and to apply for leave to appeal against her sentence up to and including 3 February 2015; 2. Leave to raise grounds 5, 6 and 7 of the conviction appeal be granted; 3. Leave to raise grounds 1 and 4 of the conviction appeal be refused; 4. The appeal against the appellant's conviction on 28 October 2013 be dismissed; 5. The applicant be granted leave to appeal against the sentence imposed on her on 4 April 2014; and 6. The appeal against the sentence imposed on 4 April 2014 be dismissed. 1. In relation to the applicant Peter Siskos, the orders I propose are: 1. The applicant be granted an extension of time to appeal his conviction up to and including 21 April 2015; 2. Leave to raise grounds 2 and 3 of the conviction appeal be granted 3. Leave to raise ground 1 of the conviction appeal be refused; 4. The appeal against the appellant's conviction of 28 October 2013 be dismissed; 5. The applicant be granted leave to appeal against the sentence imposed on 4 April 2014; and 6. The appeal against the sentence imposed on 4 April 2014 be dismissed. ***************** Amendments 16 July 2015 - Paragraphs 27, 111 and 112 corrected by substituting "Counsel" for "Senior Counsel". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2015