R v Johnson - [1997] QCA 351

IN THE COURT OF APPEAL	[1997] QCA 351
SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1997.

Brisbane

[R v. Johnson]

T H E Q U E E N

PAUL JOHNSON

(Applicant)

___________________________________________________________________

Pincus J.A.
Lee J.
Cullinane J.

_____________________________________________________________________

Judgment of the Court

Judgment delivered 14 October 1997

_____________________________________________________________________

APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL AGAINST
SENTENCE REFUSED

_____________________________________________________________________

CATCHWORDS CRIMINAL LAW - Sentence - application for extension of time to

seek leave to appeal against sentence - unlawfully trafficking in heroin - sentence of 13 years imprisonment - whether counsel who appeared for applicant below put forward account of applicant’s drug dealing activities as instructed.

Counsel:	The applicant appeared on his own behalf. Mr D Meredith appeared on behalf of the respondent.
Solicitors:	The applicant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	8 October 1997.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 October 1997

The applicant, who appeared for himself in this Court, applies for an extension of time within which to seek leave to appeal against sentence. He was sentenced in the Supreme Court on 10 March 1997 to 13 years imprisonment on a charge of unlawfully trafficking in heroin and on other, related charges. An application for leave to appeal against sentence was filed in this Court on 8 September 1997, about 5 months after the date of sentence. By way of explanation for the delay, the applicant has informed us that he signed a proper form of application at the Arthur Gorrie Correctional Centre on 27 March 1997 and gave it to a barrister ("Alan Barrett, or something"), but that this document was never filed. In the outline of argument which was prepared by or on behalf of the applicant, it is said that an "Application for an Appeal was lodged at Arthur Gorrie Correctional Centre within the time frame and apparently lost in the Jail System". This appears to be a slightly different explanation from that given before us; however, the point is of no great consequence, since as it appears to us that an extension of time should, despite the long delay, be granted if the application for leave to appeal against sentence appears to have some real prospect of success.

The applicant asserts in effect that an account of his drug dealing activities which he gave to a barrister who appeared for him below was not put before the sentencing judge. We have examined the transcript of the proceedings before the primary judge, from which it appears that Mr Glynn S.C. was counsel for the applicant there. It seems evident that Mr Glynn had detailed instructions with respect to the applicant’s background and history and the way in which he became involved in drug dealing. As to the latter point, Mr Glynn said:

"His involvement in drugs commenced in this way, Your Honour: as a result of the back injury he suffered in 1983 he has…

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.

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Details

Case: [1997] QCA 351
Decision Date: 14/10/1997

CaseChat Overview and Summary

The applicant in this case, Paul Johnson, has applied for an extension of time to seek leave to appeal against the sentence imposed upon him. The applicant was sentenced in the Supreme Court on 10 March 1997 to 13 years imprisonment for unlawfully trafficking in heroin and other related charges. The application for leave to appeal against the sentence was filed in the Court of Appeal on 8 September 1997, about 5 months after the sentence was imposed. The applicant claims that a proper form of application was signed at Arthur Gorrie Correctional Centre on 27 March 1997 and given to a barrister, but this document was never filed. The Court of Appeal is required to determine whether an extension of time should be granted despite the long delay and if the application for leave to appeal against sentence appears to have some real prospect of success.

The applicant asserts that an account of his drug dealing activities which he gave to a barrister was not put before the sentencing judge. The Court of Appeal examined the transcript of the proceedings before the primary judge and found that the counsel for the applicant had detailed instructions with respect to the applicant’s background and history, and the way in which he became involved in drug dealing. However, the applicant claims that his counsel should have informed the judge that he was "set up" by an undercover police operative who was a woman he was attracted to, and that he engaged in the transactions with the motive of helping her out. The Court of Appeal noted that the prosecutor gave an account of the applicant’s activities which was not contradicted by the applicant's counsel, and the Court was entitled to treat the facts before it as indicative of wholesale commercial dealing in a substantial way.

The Court of Appeal concluded that accusations of defective work on the part of legal representatives, before the primary judge, have become relatively common in criminal cases in this Court. However, in this case, there would seem to be no real prospect of success in challenging the sentence imposed. The recent authorities supported the sentence the judge imposed. The Court of Appeal opined that it is by no means in every case that an application based, substantially, on an assertion that the proper facts were not put before the sentencing judge by counsel, will be treated by this Court as raising an issue which it must investigate. The present case does not appear to be a case in which the matters placed before the Court of Appeal by the applicant warrant the grant of the relief which he seeks. Therefore, the application for an extension of time to seek leave to appeal against sentence was refused.

The Court of Appeal, in its judgment delivered on 14 October 1997, refused the application for an extension of time to seek leave to appeal against sentence.

Orders