R v. Evan - [2008] QCA 271

SUPREME COURT OF QUEENSLAND

CITATION:

R v Evan [2008] QCA 271

PARTIES:

R
v
EVAN, Stefan Marinel
(applicant)

FILE NO/S:

CA No 165 of 2008
SC No 96 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)
Miscellaneous Application – Criminal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2008

JUDGES:

McMurdo P, Fraser JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application to adduce further evidence refused.
2. Application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – applicant convicted after a trial of trafficking in heroin over approximately 20 month period – applicant sentenced to nine years imprisonment without a serious violent offence declaration – applicant admitted in Court of Appeal to some periods of trafficking but not all – applicant claimed some evidence was admitted which should not have been, the summing up was inadequate on some matters and did not contain all appropriate directions – defence barrister made no application for re-directions – whether any error was demonstrated in the judge's summing up – whether the sentence was outside the appropriate range – whether the applicant had given an acceptable reason for the delay in filing an appeal – whether the extension of time should be granted

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – applicant provided letter from company who employed him during the period of offending – trial judge observed that evidence of employment at trial contained only an average number of hours per week, not the actual hours worked – letter now sought to be adduced is similarly affected as to consistency of working hours – whether letter should be allowed to be tendered as further evidence

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied
Mickelberg and Mickelberg v The Queen (1988) 167 CLR 259; [1989] HCA 35, applied
R v Katsidis; ex parte A-G (Qld)[2005] QCA 229, applied
R v Main (1995) 105 A Crim R 412; [1999] QCA 148, applied
R v Mai[2002] QCA 127, considered

COUNSEL:

The applicant appeared on his own behalf
A J Edwards for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant, Stefan Marinel Evan, was convicted in the Supreme Court at Cairns on 28 September 2007 of trafficking in the dangerous drug heroin between 30 June 1999 and 21 February 2001. He was sentenced that day to nine years imprisonment with 219 days pre-sentence custody declared as time served under the sentence. On 23 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v. Evan

Details

AGLC: R v Evan [2008] QCA 271
Case: [2008] QCA 271
Decision Date: 12 September 2008

CaseChat Overview and Summary

The appellant was convicted and sentenced to nine years imprisonment for trafficking in heroin over a period of approximately 20 months. The appellant applied for an extension of time to appeal against the conviction and sentence, as well as seeking to adduce further evidence. The key issues before the court were whether any error was demonstrated in the summing up, whether the sentence was outside the appropriate range, and whether the appellant had given an acceptable reason for the delay in filing an appeal.

The court found that the appellant had admitted to some periods of trafficking but not all. While the appellant claimed that some evidence was admitted which should not have been and that the summing up was inadequate on some matters, the court found that the defence barrister made no application for re-directions. The court concluded that no error was demonstrated in the judge's summing up and that the sentence was within the appropriate range. The court further found that the appellant had not given an acceptable reason for the delay in filing an appeal. The court also found that the letter from the company who employed the appellant during the period of offending was similarly affected as to consistency of working hours and should not be allowed to be tendered as further evidence.

In light of the above findings, the court dismissed the appellant's application for an extension of time to appeal against conviction and sentence and to adduce further evidence. The court also dismissed the application to adduce further evidence.

Orders

Orders of the court

1. Application to adduce further evidence refused.

2. Application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Evan [2008] QCA 271
PARTIES:	R v EVAN, Stefan Marinel (applicant)
FILE NO/S:	CA No 165 of 2008 SC No 96 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction & Sentence) Miscellaneous Application – Criminal
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	12 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2008
JUDGES:	McMurdo P, Fraser JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application to adduce further evidence refused. 2. Application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – applicant convicted after a trial of trafficking in heroin over approximately 20 month period – applicant sentenced to nine years imprisonment without a serious violent offence declaration – applicant admitted in Court of Appeal to some periods of trafficking but not all – applicant claimed some evidence was admitted which should not have been, the summing up was inadequate on some matters and did not contain all appropriate directions – defence barrister made no application for re-directions – whether any error was demonstrated in the judge's summing up – whether the sentence was outside the appropriate range – whether the applicant had given an acceptable reason for the delay in filing an appeal – whether the extension of time should be granted APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – applicant provided letter from company who employed him during the period of offending – trial judge observed that evidence of employment at trial contained only an average number of hours per week, not the actual hours worked – letter now sought to be adduced is similarly affected as to consistency of working hours – whether letter should be allowed to be tendered as further evidence Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, applied Mickelberg and Mickelberg v The Queen (1988) 167 CLR 259; [1989] HCA 35, applied R v Katsidis; ex parte A-G (Qld)[2005] QCA 229, applied R v Main (1995) 105 A Crim R 412; [1999] QCA 148, applied R v Mai[2002] QCA 127, considered
COUNSEL:	The applicant appeared on his own behalf A J Edwards for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent