R v Duong[2002] QCA 412

COURT OF APPEAL

McPHERSON JA

HELMAN J

JONES J

CA No 236 of 2002

THE QUEEN

v.

HAI THANH DUONGApplicant

BRISBANE

DATE 04/10/2002

JUDGMENT

APPLICANT conducted his own case

MR P D KELLY (instructed by the Director of Public Prosecutions (Queensland))) for the respondent

McPHERSON JA:  The view of the members of the Court is that no useful purpose would be served by an adjournment of this matter and we would refuse it.  I would ask Justice Jones to give some further reasons in support of this view.

JONES J:  The applicant seeks an extension of time within which to appeal against his convictions on six counts of supplying the dangerous drug heroin and one count of possession of a motor vehicle used in connection with the crime.

The convictions resulted from his pleas of guilty to the above offences on 26 August 1997.  The offences occurred between June and September 1996 when the applicant, on six occasions, supplied the drug to an undercover police officer.

For each of the counts of supply of the drug the applicant was sentenced to five years' imprisonment and, in respect of the motor vehicle offence, one year's imprisonment.

In 1997 the applicant successfully appealed to this Court with the result that the major penalty  was reduced to three years' imprisonment.  (See CA No 328 of 1997).

At the time of the commission of these offences the applicant was on parole in respect of a term of imprisonment for earlier offences of supplying heroin in 1993.  As a consequence, the terms of imprisonment were amalgamated.

As appears from the certificate exhibited to the affidavit of Jodie Anne Woolridge filed on 2 October 2002 the applicant has, in respect of the subject offences, served the three years' of imprisonment in secure custody until 27 August 1998 when he was released on parole and he completed the sentence on parole on 22 October 1999.  The applicant is currently in custody awaiting deportation as an unlawful non-citizen under the Immigration Act. 

The grounds for setting aside the convictions are that they are unsafe and unsatisfactory and contrary to law because the applicant contends he was coerced by police officers to commit the crimes.  In his outline of submission the applicant concedes that he did, in fact, supply the drug but claims that he was induced into buying the heroin by the police officer saying that if the applicant supplied the drug he could have some for his own use.  His outline goes on to say that he did not buy any heroin with his own money and that he did not purchase heroin other than with the money supplied by the undercover police officer.

A consideration of the submissions made at the time of sentencing shows that the conversations at the time of each of these transactions were tape-recorded and the details were tendered as an exhibit.  The applicant was sentenced on the basis that he did not make a financial profit from these transactions, but was rewarded by the receipt of heroin for his own use.  Further, he was sentenced on the basis that all the money he received from the undercover police officer was paid to the woman who supplied the drugs.  (See record page 5 line 45).

Thus the matters now raised as a basis for setting aside the convictions were known at the time of his making his pleas of guilty and were referred to in mitigation of the sentence.  The applicant has not applied to have the guilty pleas set aside.  There is no new evidence identified which would satisfy the test enunciated in Mickelberg v. The Queen (1989) 167 CLR 259 particularly at page 273 where the test was stated that there must be a significant possibility that a jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.

The applicant provides no explanation for the delay in making the application.  That delay is now in excess of five years.  This is a critical matter in the exercise of this Court's discretion given that he successfully moved the Court of Appeal on the question of his sentence in 1997.

The motivation for making this application is apparent from the applicant's outline and it is that he wishes to avoid deportation.  That is not a relevant consideration on this application.

The combination of the very lengthy delay and the lack of prospects of success on appeal leads me to the view that I should not exercise my discretion in granting the extension of time.  I would therefore dismiss the application.

McPHERSON JA:  I agree.

HELMAN J:  I agree.

McPHERSON JA:  The order of the Court is that the application to extend time for appealing against conviction is refused.