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  • Unreported Judgment

R v Walker

 

[2020] QCA 281

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walker [2020] QCA 281

PARTIES:

R

v

WALKER, Amanda May

(applicant)

FILE NOS:

CA No 316 of 2019

CA No 326 of 2018

SC No 1037 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Reopening (Criminal)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction & Sentence: 19 November 2018 (Lyons SJA)

DELIVERED ON:

11 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2020

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDER:

Refuse the application.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – ABANDONMENT OF APPEAL – where, after a two week trial, the applicant was found guilty of five drug offences – where the applicant previously appealed against her convictions and also sought leave to appeal against her sentences – where at the hearing of her application for leave to appeal against sentence in 2019, the applicant’s counsel abandoned the appeal against conviction – where the applicant’s sentence application was refused – where the applicant now applies to reinstate her abandoned conviction appeal – where the applicant led evidence in support of her application – whether the appeal would have any prospects of success – whether the interests of justice make it necessary to reinstate the applicant’s conviction appeal

Criminal Practice Rules 1999 (Qld), r 70(3)

R v Basacar [2008] QCA 285, cited

R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, cited

R v Walker [2019] QCA 199, related

COUNSEL:

The applicant appeared on her own behalf

G J Cummings for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    THE COURT:  After a two week trial, the applicant was found guilty of five drug offences.  The applicant was sentenced to six and a half years’ imprisonment on count 1, trafficking in a dangerous drug, and not further punished on the remaining four counts.  Parole eligibility would arise at the half-way point in that sentence.  Counts 2 to 4 charged possession of dangerous drugs and count 5 charged possession of a mobile phone used in the commission of the trafficking offence.
  2. [2]
    The applicant previously appealed against her convictions and also sought leave to appeal against her sentences.[1]  At the hearing of her application for leave to appeal sentence on 23 September 2019, the applicant’s counsel abandoned the appeal against conviction.  The Court reserved its judgment in relation to the application for leave to appeal against her sentence and made an order dismissing the application on 27 September 2019.  The applicant now applies to reinstate her abandoned conviction appeal.  She filed her application for an extension of time within which to appeal her conviction on 28 November 2019.
  3. [3]
    Rule 70(3) of the Criminal Practice Rules 1999 (Qld) provides that the court may set aside an abandonment of an appeal and reinstate it if the court considers that it is necessary to do so in the interests of justice.  It has been held[2] that, generally, the rule requires the court to consider three things:
    1. (a)
      The reason for the abandonment of the appeal;
    2. (b)
      The explanation for any delay in bringing an application; and
    3. (c)
      The prospects of success of the proposed appeal.
  4. [4]
    The applicant led evidence in support of her application.  In her affidavit she said that she did not know that her legal representatives had abandoned her appeal against conviction.
  5. [5]
    This contention has not been challenged or controverted and may be accepted.  The time between abandonment and the application for reinstatement is short and, the court having heard argument about the merits of the proposed appeal, this application should be decided by reference only to the prospects of success of the proposed appeal.
  6. [6]
    In summary, the charges against the applicant arose from police surveillance of a drug trafficker named Vidler.  In the course of their observation of Vidler, police saw the applicant arrive at a BP petrol station in a car.  Vidler and another man arrived and the three individuals engaged in a conversation.  Police followed the applicant when she drove away.  She was stopped and her car was searched.  During the course of these searches police found just over 20 grams of methylamphetamine hidden on the applicant’s body and, in her purse, a clip-seal bag containing a dangerous drug in tablet form and a set of scales that could be used to weigh drugs for sale.  They found a mobile phone in the applicant’s purse and she admitted that it was hers.  The applicant was arrested and charged.  Afterwards, police began to eavesdrop on the applicant’s phone calls and these intercepts led to the charge of trafficking.  A jury found the applicant guilty of the five offences.  The following is taken from the reasons of Fraser JA dismissing the applicant’s application for leave to appeal sentence:[3]

There is no challenge to the trial judge’s findings of fact made in the course of imposing sentence.  Text messages and telephone calls adduced in evidence at the trial established that for about eight and a half months between 21 August 2015 and 11 May 2016 the applicant frequently bought from her supplier and she sold at street level both methylamphetamine and cannabis.  She bought methylamphetamine in ounce amounts and regularly sold “eight balls” (3.5 grams) and other amounts, including by purchases and sales on credit.  There were coded references to the applicant’s supplies in the course of her trafficking business.  She was commercially motivated.  She appears to have supplied regularly to some 15 retail customers.  The trial judge found that the applicant was a “persistent trafficker” in both drugs who engaged in “eight months of great activity”.  It was not submitted that drug addiction explained the offending, but she used drugs several times a week.  On 17 November 2015, after trafficking for nearly three months, the applicant was found in possession of about 20 grams of pure methylamphetamine (count 2) and a quantity of another dangerous drug (count 3).  Despite being given a notice to appear and being released on bail, the applicant persisted in her trafficking offence for more than five months afterwards.

  1. [7]
    At the hearing of the application for leave to appeal against sentence on 23 September 2019, the applicant abandoned her appeal against conviction[4] and did not challenge any of the sentencing judge’s factual findings.[5]  Nor did she directly challenge any of those findings on this application.  However, the applicant advanced arguments which, she contended, affect the reliability of some of the evidence led against her at the trial.
  2. [8]
    The applicant submitted that evidence of a telephone intercept contained recordings of calls from a number (ending in 884) that belonged to Vidler speaking to a female at another number (ending in 588) who, the Crown alleged, was the applicant.  She submitted that there was no evidence that the female was the applicant.  The problem with that submission is that the applicant formally admitted at the trial that the 884 number belonged to Vidler and she had admitted to police that the 588 was hers.  The prosecution case was that the applicant used the 588 number to make this call that was proved in evidence.  The Crown proved that the voice was the applicant’s voice by drawing an inference from several facts.  These were the applicant’s admission to police as to the phone number of her mobile phone.  Incriminating calls to and from that number were with a female who answered to the various contractions of the applicant’s first name.  The Crown tendered a video recording made by police during a search of the applicant’s premises and the jury was invited to compare the applicant’s voice on that recording with the voice on the intercepted calls.  There were other facts giving rise to the same inference but it is not necessary to detail them.  The Crown case identifying the applicant as one of the participants in the calls was overwhelming and that is probably why her identity as one of the speakers was not put in issue by her counsel at the trial, as one can see from counsel’s closing address.
  3. [9]
    The applicant submitted that, in relation to one of the intercepts, the Crown alleged that the woman’s voice was that of the applicant but that in a different prosecution case the Crown attributed the call to another woman.  The applicant pointed to an intercept in a different case in which similar language was used.  That submission cannot be accepted because there is no evidence that the same intercept was used inconsistently in two cases.
  4. [10]
    The applicant also pointed to some evidence at the trial concerning ownership of a vehicle owned, or previously owned, by Vidler as well as some evidence about a Mitsubishi Triton vehicle.  It was not made clear how this evidence could impinge upon the correctness of the verdicts.
  5. [11]
    The applicant pointed to certain field property receipts issued by two police officers some time after the applicant’s arrest.  She submitted that those receipts were unreliable as evidence because they were, in some respects, inconsistent with the content of certain statements.  How this might affect the verdicts was not explained.  In any event, questions about reliability of evidence were within the province of the jury.
  6. [12]
    The applicant made submissions in relation to some statements made by a police officer when she was arrested about the value of some of the drugs found in the applicant’s possession.  These submissions go nowhere because the Crown’s case did not depend at all upon what a police officer might have thought and said about that subject at the time of the applicant’s arrest.  She also made submissions concerning some apparent discrepancies in the signatures or other identifying marks on labels attached to pieces of evidence.  None of these discrepancies have any possible relevance to the Crown’s proof of guilt and it is not necessary to consider them.  Another similarly pointless argument which would be unprofitable to analyse was based upon an invitation to the Court to compare the applicant’s handwriting on a form with the handwriting on a “tick sheet” found at the applicant’s premises.  The point was not raised at trial and the exemplar document containing what was said to be the applicant’s handwriting was not adduced as evidence at the trial.  This evidence was not fresh and could not assist on an appeal.  Another argument was based upon an attempt to persuade this Court that, contrary to the Crown’s case at trial, the applicant’s presence at the place where drugs were found could be accounted for innocently.  That was, of course, a matter for the jury – if it was raised at the trial, which is not clear.  If it was not raised at the trial it is too late to do so now.
  7. [13]
    Another argument was that the phone numbers that were the subject of police interception were numbers that did not belong to the applicant.  The problem with that argument is that the Crown did not seek to prove the applicant’s guilt by proving the numbers but, rather, by tendering recordings of conversations between callers who included persons using those numbers.  The jury was invited to conclude that one of the speakers in these phone calls was the applicant.  As has been said, that fact was not put in issue at the trial.  No argument has been made that could call into question that it was open to the jury to find that the applicant was one of the speakers on the recordings.
  8. [14]
    The applicant pointed to some evidence showing that police undertook a search of the applicant’s car.  She submitted that there was “no caution given”.  However, she accepted that a police officer gave evidence that he had sought and obtained the applicant’s consent for the search.  The point goes nowhere.
  9. [15]
    We are not satisfied that an appeal would have any prospects of success.  For that reason, we are not satisfied that the interests of justice make it necessary to reinstate the applicant’s appeal.
  10. [16]
    We refuse the application.

Footnotes

[1][2019] QCA 199.

[2]R v Basacar [2008] QCA 285; R v Marriner [2007] 1 Qd R 179.

[3][2019] QCA 199, at [2].

[4][2019] QCA 199, at [1].

[5]Ibid, at [2].

Close

Editorial Notes

  • Published Case Name:

    R v Walker

  • Shortened Case Name:

    R v Walker

  • MNC:

    [2020] QCA 281

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Philippides JA

  • Date:

    11 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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