R v Leith - [1998] QCA 320

COURT OF APPEAL

[1998] QCA 320

de JERSEY CJ
SHEPHERDSON J

CULLINANE J

CA No 255 of 1998

THE QUEEN

SCOTT ANTHONY LEITH	Applicant
BRISBANE ..DATE 17/09/98
JUDGMENT

SHEPHERDSON J: The applicant has applied for an extension of time within
which to appeal against a sentence imposed on
12 March 1998 for an offence of trafficking in the dangerous drug cannabis
sativa. On that day he had pleaded guilty to a charge that between the
31st day of May 1996 and the 31st day of May 1997 at Bundamba he did carry
on the business of unlawfully trafficking in a dangerous drug, namely
cannabis sativa. The learned sentencing Judge sentenced the applicant to
imprisonment for two years, which sentence was to be suspended after nine

months, and an operational period of three years.

The notice of application for extension of time is dated

5 August 1998 and was filed on 6 August 1998. On the same date a notice of

application for leave to appeal against the sentence was also filed. The

ground of the application for the extension of time is stated as follows: "That I have recently been diagnosed as having cancer and my prognosis is

poor. I have been informed I have less than six months to live."

These statements as to diagnosis, prognosis and life expectancy are based on hearsay and the source or sources of the statements were not disclosed until affidavits by the applicant and his solicitors were filed, one of them arriving only yesterday.

In applications of this type, there is an onus on the applicant to
introduce evidence explaining the delay in
applying for leave to appeal against sentence. It was not until yesterday
that that evidence was complete. There has been a delay of almost four

months in seeking relief from this Court.

A report from a medical oncology registrar dated
14 August 1998 exhibited to one of the affidavits shows that on 1 July 1998
the applicant originally presented to the Princess Alexandra Hospital with
problems which, on investigation, proved that he was suffering metastatic
carcinoma with lung, liver and spleen metastases. Metastatic germ cell
tumour was diagnosed.

The evidence shows the applicant has had, and will have, chemotherapy, and although germ cell tumours are highly curable, the letter from the oncology registrar shows that it is likely that the applicant has a very rare form of germ cell tumour which has a much worse prognosis than a 50 per cent cure rate. In my view, this report, and the applicant's affidavit, adequately explain the delay in the application.

I leave aside, for the moment, the matter of explanation for the delay, and I turn to the merits of the application for leave to appeal against sentence. In my view, if one ignored the report from the oncology registrar, the prospects of success of the application are poor and, if the merits of the appeal were the only aspect to consider, the application for extension of time should…

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 Leith

Details

AGLC: R v Leith [1998] QCA 320
Case: [1998] QCA 320
Decision Date: 17/09/1998

CaseChat Overview and Summary

In the matter of R v Leith, the applicant, Scott Anthony Leith, sought an extension of time to appeal against a sentence imposed for trafficking in cannabis sativa. The sentence, which was suspended after nine months, was to be effective for three years. Leith applied for an extension of time to appeal due to a recent diagnosis of cancer, with a poor prognosis. The application for an extension of time was based on the applicant's assertion that he had been diagnosed with metastatic carcinoma, with metastases in the lung, liver, and spleen, and that his life expectancy was less than six months. This application was made almost four months after the original sentence was imposed.

The court had to determine whether the delay in applying for an extension of time was justified and whether the sentence imposed was manifestly excessive. The court considered the evidence provided by the applicant, including the report from a medical oncology registrar, which indicated that the applicant had a rare form of germ cell tumour with a poor prognosis. The court also considered the decision in The Queen v. Maniadis, which established that this court has a discretion to admit new evidence on an application for leave to appeal against sentence if its admission shows that some other sentence, more or less severe, was warranted in law.

The court found that the evidence provided by the applicant adequately explained the delay in applying for an extension of time. The court also found that if the sentence remained in place, the applicant, whose health was in a very poor state, might well die in custody, which would be draconian, tragic, and inhumane. The court found that the circumstances of the present case were very unusual and that it would be a miscarriage of justice if the extension of time were not granted and the sentence varied to permit the applicant to be released immediately from custody.

The court granted the application for an extension of time and leave to appeal against sentence. The court also varied the sentence imposed on 12 March 1998 by suspending the term of imprisonment as from the date of the judgment and otherwise confirming the sentence. The orders of the court were as indicated by Mr Justice Shepherdson.

Orders