R v Grech
[2001] VSCA 192
•25 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 285 of 2000
| THE QUEEN |
| v. |
| MARIO PETER GRECH |
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APPLICATION FOR EXTENSION OF TIME
JUDGES: | PHILLIPS, CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 October 2001 | |
DATE OF JUDGMENT: | 25 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 192 | |
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Criminal law – Trafficking in heroin – Possession for sale – Applicant discovered in motel room with heroin displayed and equipment for selling – Applicant convicted despite evidence from the occupant of the room that the drug and the equipment were hers – Applicant’s later reliance upon “fresh evidence” to support the occupant – Whether truly “fresh evidence” – Application to extend time for seeking leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | K. Robertson Solicitor for Public Prosecutions |
| For the Applicant | Mr P.F. Tehan, Q.C. | Patrick W. Dwyer |
PHILLIPS, J.A.:
This is an application for extension of time within which to lodge notice of application for leave to appeal against conviction. The application was refused by Master Gaffney on 9 February 2001 and subsequently the applicant filed notice of election to have his application determined by the Court of Appeal.
The applicant pleaded not guilty in the County Court to a presentment containing one count of trafficking in heroin and, in the alternative, being in possession of heroin on 14 May 1999. On that day he was apprehended in a motel room in Bendigo, standing at a bench on which, in front of him, was a set of electronic scales which were switched on and bore a weight reading. Next to the scales was an open plastic bag containing a small spoon and 14 grams of white powder containing heroin, a large quantity of cut squares of freezer bag plastic, nine 0.1 gram quantities of white powder containing heroin, each wrapped in cut squares of freezer bag plastic, and four plastic bags each containing a further ten 0.1 gram quantities of white powder containing heroin, separately wrapped. There were also two mobile telephones on the bench. The applicant, when interviewed, declined to answer questions relating to the alleged offending. On 19 May the sum of $2,600 in cash was found by a hotel guest in a drawer in the same room of that motel.
The applicant was apprehended in a room which had been allocated to one Ravarotto who had checked into the motel about one and a half hours earlier. Not long after the applicant was apprehended, Ravarotto and a friend, one Harbridge, were arrested as they were coming back to the motel. In the course of the trial one of the policemen who gave evidence stated that Ravarotto was a known user of heroin who engaged in trafficking to support her own habit and, upon the close of the Crown case, the applicant, who in the end did not himself give evidence, called Ravarotto to give evidence. She said that she had booked the room for the purpose of meeting with the applicant, with whom she had been in a relationship. She said also that the drugs, scales and clear plastic bags and wrapping found by the police were hers. She said that after the applicant arrived at about 4 p.m. she had offered to go to the local McDonald's. She had also received a call from Harbridge requesting the supply of 0.3 grams of heroin for $100 and she had arranged to make that exchange at McDonald's. She had laid out her drugs and paraphernalia on the bench and had switched on the electronic scales and weighed out and packaged the special quantity required, leaving the room at about 4.40 p.m. and completing the transaction with Harbridge at McDonald's. It was as she and Harbridge went back towards the motel that they were arrested. She said that the police found on her person the $100 that Harbridge had given her and that the police did not find any drugs on Harbridge because he had swallowed the heroin she had supplied.
Obviously, the jury did not accept the evidence of Ravarotto because they returned a verdict of guilty to count 1. No verdict was taken on count 2, which had been pleaded in the alternative. The applicant admitted 32 previous convictions from 19 court appearances between July 1975 and December 1993, including two charges of possessing a drug of dependence and two counts of trafficking in a drug of dependence, as well as one count of manslaughter. On this occasion he was sentenced to be imprisoned for four years and six months and a non-parole period was fixed of three years.
On 3 October 2000, the applicant filed notice of application to extend time within which to seek leave to appeal against conviction and sentence. The notice of application filed on 3 October foreshadowed an affidavit in support, but none was forthcoming. The application was refused on 12 February 2001 by the Registrar, and it was only after notice of election had been given on 22 February that two affidavits in support were filed. The first was sworn by the applicant himself on 20 March 2001 and the other by Christopher Dudkowski on 4 April. There is now a further affidavit of the applicant, sworn on 19 September.
We are concerned, of course, with the reason for the applicant’s not acting within time. In his affidavit of 20 March 2001, the applicant claims that he wanted to appeal and says that he indicated as much shortly after he was sentenced to his then legal representatives. According to him, they said that the trial had been fair and that the judge had "closed all the doors". The applicant says that he did not accept this advice but "was unaware of the time limits prescribed for the lodging of an application for leave to appeal". I must say I find this surprising, given the elaborate history of previous convictions. There is, I might add, nothing to confirm it. Further, the applicant says that he was "in a state of shock at having been incorrectly convicted". He was given sleeping pills and ”things were really quite a blur during that period of time". It was only in September 2000 that he made contact with a solicitor, one Pearson, who, it appears, filed notices of application on 3 October for leave to appeal against both conviction and sentence. At the same time, application was filed for an extension of time.
Even then, no reference was made to fresh evidence; that followed later. In the material now filed the applicant seeks to put the blame for the further delay, from October to March, on his then legal advisers. But, that apart, it may be doubted whether the initial failure to act within time has been sufficiently explained. However that may be, I would refuse this application to extend time because I am not satisfied that there is any reasonable prospect of the projected appeal succeeding.
The applicant is now pursuing the application for an extension of time only in relation to conviction, not sentence. According to the notice of application for leave to appeal against conviction filed on 3 October 2001, there was but one ground to be taken, that is that the verdict was unsafe and unsatisfactory. According to the applicant's affidavit of 20 March 2001, that was expanded by the addition of three further grounds: that the jury "could not have possibly paid sufficient notice to the sworn evidence of [Ravarotto]“ (something which the applicant claimed was supported by the fact that "the jury deliberated for only about 20 minutes"); that the Crown prosecutor "used extravagant language in calling [Ravarotto] a perjurer when she [had] never been charged with the offence of perjury"; and, finally, that there was fresh evidence available to support the evidence of Ravarotto. Now it is said that only the first of these four grounds, and the last, will be pursued.
To put it shortly, I think there is nothing in the first of these grounds. Given the evidence before the jury, the verdict was not, in my opinion, unsafe or unsatisfactory. The last ground, that of fresh evidence, is a reference to what is said in the affidavit of Christopher Dudkowski. He, it seems, is a prisoner serving a sentence of 33 months for drug trafficking. He knows the applicant; they met in about 1995 when both were serving sentences of imprisonment. He also knows Ravarotto and knows her to be both a heroin user and a heroin dealer. According to his affidavit of 4 April 2001, Dudkowski spoke to the applicant about his case when the latter arrived in prison in about September 2000. He recalls (he says) that on the day of the applicant's arrest in 1999 he travelled to Sunshine with Ravarotto where she picked up some heroin from a drug dealer while he waited outside. He then drove her back to Bendigo. He recalls also her telephoning him, after 2 p.m., saying that she was at the motel and asking him to come over and then go with her to the Bendigo Mall "where she was probably going to deal some heroin". Arriving at about 4 p.m. or thereafter, Dudkowski says he was "surprised to see the Applicant there". He spoke to the applicant for about five minutes, the applicant telling him that Ravarotto had gone to McDonald's. Dudkowski says that he then left to seek her out but could not find her. He heard from her at about 10 p.m. when she told him that the applicant was in custody. He concludes the affidavit in this way: "As a result of what I did and what I was told by [Ravarotto], I know that the heroin in the motel room belonged to [her]".
On behalf of the applicant Mr Tehan urges that the evidence of Dudkowski is relevant as confirming the evidence of Ravarotto that the heroin in the motel room was hers, not the applicant's. I am not yet clear that the evidence of Dudkowski, even if accepted at face value, goes so far as that; and much of it is hearsay. Nor am I yet satisfied that the evidence is altogether credible, given some of the points made in argument this morning. More importantly, I am not satisfied that it is evidence which could not have been made available at the time of the trial had it been sought with diligence. After all, Dudkowski describes meeting the applicant shortly before the applicant was arrested by the police. If true, the applicant must have known of that meeting and therefore that Dudkowski might have been a source of information;
they spoke, it is said, for about five minutes. Moreover, it appears probable from the record of telephone intercepts relating to the mobile telephones of both the applicant and Dudkowski that the two were in contact during May and, indeed, on the very day of the applicant's arrest. Failing to obtain at least a proof from Dudkowski was scarcely due diligence.
It follows for the reasons I have given the extension of time should be refused.
CALLAWAY, J.A.:
The applicant desires to rely upon two grounds of appeal if the extension is granted. They are expressed as follows:
(a)The verdict of the jury was unsafe and unsatisfactory.
(b)There is fresh evidence available which supports the evidence of Anne-Marie Ravarotto. The fresh evidence is that of Chris Dudkowski. It was not available at the trial and could not have been made available with due diligence.
The first ground is quite unsustainable. It was open to the jury to conclude that the applicant was caught red handed. They disbelieved Ravarotto's evidence. The applicant himself stood mute.
For the second ground to succeed the evidence of the proposed witness would, first, have to be reliable in the sense that it is apparently credible or capable of belief; secondly, it would have to be evidence that was not, with the exercise of due diligence, available to the applicant at his trial; thirdly, it would have to be evidence of such cogency that, if believed, there is a significant possibility that the jury, if they had been apprised of it, and acting with reason, would have acquitted the applicant. There is some controversy over the expression "significant possibility", but it is sufficient for present purposes. It is the formulation most favourable to the applicant.
I entertain considerable doubt whether Dudkowski's evidence is apparently
credible, having regard to the circumstances in which it came to light, the proposed witness's convictions for perjury and for trafficking during the relevant period and the fact that there is no support for it in Ravarotto's statement or the evidence she gave at the trial.
As to the cogency of his evidence, it is said to go to the issue of possession, the form of trafficking, as I understand it, having been possession for sale. Much of it is hearsay. The critical passage in Dudkowski’s affidavit, as identified by Mr Tehan, is to the effect that on the day of the offence the witness and Ravarotto drove together to Sunshine and he waited while she picked up heroin from a dealer. I doubt that the evidence has the required degree of cogency, but I pass that by in view of my conclusion on the remaining requirement.
Like the learned presiding judge, I am not persuaded that due diligence did not extend to proofing the proposed witness in the circumstances asserted in his evidence and given the additional facts to which His Honour has referred.
It follows that neither of the grounds of appeal on which the applicant desires to rely is sustainable. That being so, I need express no view on the reasons that have been assigned for the delay.
I, too, would refuse the application.
BUCHANAN, J.A.:
In my opinion, the ground that the conviction was unsafe and unsatisfactory is without merit for the reasons given by Callaway, J.A.
I am of the view that the ground of the application based on the evidence of the witness Dudkowski is also deficient in that the evidence was discoverable with the exercise of reasonable diligence. The witness and the applicant, it appears likely, were in telephone communication over several days leading up to and including the day on which the applicant was arrested and the applicant met the witness shortly before the arrest. Those facts would have been revealed if proper instructions had
been taken from the applicant and a proof of evidence should have been taken from the witness.
Accordingly, I agree that the application should be refused.
PHILLIPS, J.A.:
The Order of the Court is that the application is dismissed.
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