The Queen v Leith[1998] QCA 320

COURT OF APPEAL

de JERSEY CJ

SHEPHERDSON J

CULLINANE J

CA No 255 of 1998

THE QUEEN

v.

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 be refused. 

The applicant has so far served just over six months of the sentence imposed.  The sentence imposed for trafficking in cannabis sativa cannot, in the light of the material placed before the learned sentencing Judge, be shown to have been manifestly excessive.  Indeed, it accords with a decision of this Court - The Queen v. Andrew John Vellacott, CA No 125 of 1997 in which judgment was delivered on 17 June 1997 and to which the learned sentencing Judge was referred.  There was no error in the exercise of the sentencing discretion.

I have had regard to the decision of this Court in The Queen v. Maniadis [1997] 1 QdR 593, which decided that this Court, on an application for leave to appeal against sentence, has a discretion to admit new evidence, notwithstanding that it is not "fresh" in a technical sense if its admission shows that some other sentence, more or less severe, was warranted in law.

At page 597, in the joint judgment of Davies JA and Helman J, their Honours, in speaking of evidence sought to be admitted on an appeal, said:

"In the end the reception of such evidence will depend on whether, if it were excluded, there would be a miscarriage of justice and it would be undesirable, in our view, to state in advance those matters which, in every case, must be proved in order to establish such miscarriage."

In my opinion, the circumstances of the present case are very unusual, and are such that if the sentence remained in place the applicant, whose health is in a very parlous state, might well die in custody.  Such a result would be draconian, tragic and inhumane.

If both applications before this Court were refused, it appears likely the applicant would effectively be obliged to spend his last days in custody and be deprived of the society and comfort of his wife and children.  It appears that the applicant's illness has ended an estrangement he had with his wife.  He would be obliged to recover from treatment while in a prison hospital situation. 

In my view, given the very unusual circumstances of this case, it would be a miscarriage of justice if this extension of time were not granted and the sentence varied to permit the applicant to be released immediately from custody.

I would therefore order as follows:

(1)Extension of time for leave to appeal against sentence granted and leave to appeal extended to 6 August 1998.

(2)That the affidavits of the applicant and Timothy Forbes Harland be received on the hearing of the application for leave to appeal.

(3)Leave to appeal against sentence granted.

(4)Appeal allowed.

(5)Sentence imposed on 12 March 1998 be varied by suspending the term of imprisonment as from today and otherwise confirming the sentence. 

de JERSEY CJ: I agree, especially having regard to the fact that the applicant has already served six months' imprisonment.

CULLINANE J:  I agree also.

de JERSEY CJ:  The orders are as indicated by Mr Justice Shepherdson.