Glenn Wheatley will stay in jail for another eleven months after his legal team pulled the plug on his appeal yesterday in the Victorian Court of Appeal.
One of the three judges sitting on the appeal, Justice Alex Chernov, made it clear from the outset that if Wheatley’s sentence was set aside the court had the power to increase the sentence and warned it could feel “compelled to do so”.
Wheatley’s barrister, Robert Richter QC, stormed past waiting media outside the court and refused to comment on the decision.
However, legal sources tell Crikey that Justice Chernov should not have sat on the appeal. Last month, the legal team sought leave to appeal against the sentence in the Court of Appeal and this was heard by Chernov as a single judge.
He granted leave but warned Wheatley’s team back then that his sentence could go higher. The source said:
He appeared to form a view from the outset and, in the circumstances, should have disqualified himself from the appeal. As it turned out, two minutes into the appeal hearing yesterday and he says the same thing to Robert Richter.
It scared the life out of him – not to mention Glenn and his wife Gaynor who was sitting in the gallery.
After Richter was told the news by Chernov, he asked for an adjournment so he could get instructions from his client. It’s understood Glenn and Gaynor disagreed as to what to do. Glenn wanted to roll the dice as he was confident he would receive a lesser sentence. Understandably, he is not happy working in the factory in the minimum security Beechworth Prison.
However, Gaynor was not prepared to risk further time away from her husband. Richter returned to the court and told the judges he had no option but to seek leave to abandon the appeal.
Meanwhile, two days ago, key targets in Operation Wickenby MM and DD were back in the Federal Court in Sydney before Justice Emmett.
Their names have been suppressed by the courts; however, one has been described as a financial adviser, the other as his client, an offshore resident who used to live in Australia.
The barrister for MM and DD Francois Kunc alleges that many documents seized by the Australian Crime Commission (ACC) are subject to legal professional privilege. They contend the notices sent to MM and DD are invalid and the ACC are in possession of illegally obtained documents. They have requested Justice Emmett to rule on what relief is available to them.
Kunc noted that, if the judge ruled in MM and DD’s favor, the ACC case would fall apart as the illegally obtained documents were used to mount the ACC case. He also mentioned that much in the way of taxpayer funds had been used by the ACC to pursue this case. It’s understood that MM and DD have spent $10 million dollars to defend themselves.
You would have to ask yourself then; what have the ACC spent?
I popped into the hearing on Wednesday and I was astounded to see three barristers led by Timothy Game SC at the table defending the ACC and sitting behind them were three high profile solicitors from the Australian Government Solicitors office. I estimate that for the whole day it would have cost Australian taxpayers around $50,000.
If costs are awarded against the ACC taxpayers will undoubtedly have to fund it.
Justice Emmett has reserved his decision. If it goes against the ACC, it will have serious ramifications for the future of Operation Wickenby.
And Labor did promise that, providing they formed government, they will review Operation Wickenby as a priority.