SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant, Stefan Marinel Evan, was convicted in the Supreme Court at Cairns on 28 September 2007 of trafficking in the dangerous drug heroin between 30 June 1999 and 21 February 2001.  He was sentenced that day to nine years imprisonment with 219 days pre-sentence custody declared as time served under the sentence.  On 23 June 2008 he filed an application for an extension of time within which to appeal against his conviction and sentence, almost eight months out of time.  He contends in his notice of application and his proposed notice of appeal that he is not guilty of the trafficking offence and that his sentence is too long.

[2] Mr Evan appeared for himself in this application.  Although there is no evidence in an admissible form to explain his significant delay in bringing this application, in his written outline of argument he contends that he received legal advice that he had no real prospects of success on an appeal; he has since read the judge's summing up and sentencing transcript and found that his lawyer failed to carry out his instructions.

[3] In his oral submissions, he admitted his responsibility for that part of the offence of trafficking in heroin which occurred in Mackay and Rockhampton; but he asserted his innocence in respect of that part of the offence alleged by the prosecution to have been committed in Cairns in 1999.  In that respect, he sought leave to tender a photocopied letter from Red Lea Chickens Pty Ltd, Blacktown, New South Wales, dated 14 August 2008.[1]  It recorded that he "was employed as a Casual Process Worker and worked an average of 38 hours a week … from 11th August, 1999 to 26th October, 1999".  When asked whether he was thereby abandoning his written outline of argument, he responded that he wished to rely on it "if it would help".  It may be prudent therefore to consider Mr Evan's written contentions before returning to his oral submissions.

[4] His contentions in his written outline of argument seem to be as follows.  The judge erred in not giving more emphasis to the concept of reasonable doubt in her summing up to the jury.  The judge erred in not giving a direction in accordance with Domican v The Queen.[2]  The evidence of witnesses Ogilvie, Fuffe and Hill as to identification should have been excluded and the judge's directions as to eye-witness and voice identification evidence were inadequate.  The judge erred in not holding that it was impermissible to produce evidence relating solely to a witness's credit, and in not directing the jury on highly prejudicial evidence, citing R v Connolly[3] and R v Connolly (No 2).[4]  The judge should have directed the jury as to circumstantial evidence.  The judge should also have directed the jury about the criminal history of prosecution witnesses, especially Ms McReaddie, who was a drug addict, inconsistent and unreliable.  The judge erred in not directing the jury on the weaknesses and strengths of the prosecution and defence cases.  The judge erred in failing to give a direction to the jury in terms of Weissensteiner v The Queen.[5]

[5] Whilst the full transcript of the trial is not before this Court, we have been supplied with the judge's summing up to the jury, counsel's sentencing submissions and the judge's sentencing remarks.

[6] The judge gave the usual direction in terms of reasonable doubt in conformity with Darkan v The Queen.[6]  Mr Evan's contention as to this aspect of the summing up is unmeritorious. 

[7] As to circumstantial evidence, the judge told the jury that the prosecution case relied partly on it and before they could bring in a verdict based on circumstantial evidence, they must be satisfied that Mr Evan's guilt was the only logical conclusion that could be drawn from the evidence; if there was any rational inference consistent with innocence he must be found not guilty.  Mr Evan's contention that the judge's directions on circumstantial evidence were flawed is not made out.

[8] The judge warned the jury to treat Ms McReaddie's evidence with considerable caution, making the following observations.  Ms McReaddie was a long-standing drug addict and she was sometimes unreliable.  When she spoke to the police about these matters, she was in the throes of a severe addiction.  She was also carrying on her own business of trafficking at street level in the course of which she was arrested and charged three times: in March 2000, May 2000 and January 2001.  She gave two statements to the police.  She implicated Mr Evan for the first time in the second statement.  She pleaded guilty to trafficking in heroin and was sentenced to five years imprisonment, suspended after nine months.  The judge who sentenced her said that but for her co-operation and her undertaking to give evidence, she would have received a sentence of seven years with parole eligibility after three and a half years.  If she failed to co-operate with her undertaking to give evidence, she was, as a matter of law, at risk of having her sentence re-opened and having a harsher penalty imposed.  The judge told the jury that for those reasons they:

"must approach the assessment of the truthfulness and reliability of her evidence with great care.  You might think that there was a strong incentive for her to implicate [Mr Evan] when giving evidence.  And of course, if her evidence was untruthful or unreliable in one or more respects, there's a risk that it may have a deceptive plausibility about it, because she was familiar with the details at least some of what occurred.

So in all of these circumstances it would be dangerous for you to act on her evidence unless you're satisfied it [is] supported in a material way by independent evidence implicating [Mr Evan] in the offence."

[9] The judge's warning to the jury about Ms McReaddie's evidence appears entirely appropriate.  Mr Evan has not demonstrated error in this aspect of the judge's directions.

[10]  The judge referred to the evidence from the operators of motels in Cairns identifying Mr Evan as someone who stayed at their premises at various times during the period of the trafficking.  They identified his photograph from photo boards.  The judge warned the jury of the danger of convicting people in reliance on the correctness of visual identification and that it was quite possible for an honest witness to make a mistake in identification; notorious miscarriages of justice had sometimes occurred; an honest but mistaken witness may nevertheless be convincing; a number of apparently convincing witnesses may all be honest but mistaken.  Her Honour invited the jury to consider whether the circumstances of the identification may have affected its reliability and whether there was any discrepancy between what the witnesses told police at the time of the identification and their evidence in court.  Her Honour reminded the jury that evidence of identification of casual acquaintances or strangers required special care.  The judge referred to the particular dangers of identification by photographs: photographs were two dimensional and static so the differences between a suspect and an offender may be less noticeable in a photograph than in the flesh; and the mere fact that the photo board was presented by police may lead to subconscious assumptions that one of the photos must be of the offender and the suspect has a criminal record.  The judge then warned the jury about identification evidence of specific witnesses. 

[11]  The identification evidence was admissible and relevant.  The judge's directions on it were careful, thorough and fair.  They appear to have met the requirements set out in Domican.  Mr Evans has not demonstrated any error in this respect.

[12]  The judge explained the elements of the offence.  Later her Honour summarised the prosecution evidence for the jury in terms which included the following.  Ms McReaddie implicated Mr Evan as one of her suppliers of heroin.  A letter from Red Lea Chickens in Sydney recorded that he was employed as a casual there between 11 August and 26 October 1999.  The judge noted that the letter did not "contain any details of the consistency with which he worked over that period".  A number of Commonwealth Bank deposit slips were tendered relating to an account in the applicant's name.  Ms McReaddie completed the deposit slips and deposited amounts less than $10,000 so that the bank was not required to notify the authorities about the deposits.  Ms McReaddie's fingerprints were found on two of those deposit slips.  A financial analyst identified more than $40,000 in unsourced deposits to Mr Evan's accounts between 29 October 1999 and 9 January 2001.  Mr Evan had purchased a motor vehicle on 9 January 2001 for $11,990, paid by way of a trade-in of $3,450 and cash of $8,500.  There had been no withdrawals from his accounts at this time for any sum attributable to this purchase.  The judge noted that Mr Evan's fingerprints had been found on three documents at a motel unit in Cairns during the time of the trafficking.  The judge also referred to an electronically recorded interview between Mr Evan and police which was played at trial and in which he claimed he had never met Ms McReaddie.  The prosecutor submitted that the interview was riddled with Mr Evan's lies.  Her Honour directed the jury that if they found he had lied, this went only to his credibility; people often lie for reasons other than because they committed the offence, for example, panic or to protect someone else.

[13]  The judge reminded the jury of the principal points of the defence case.  Ms McReaddie was unreliable because she was trying to "save her own skin".  Her evidence was inconsistent with the evidence of the accommodation records in Cairns, was not supported by any motel records from Mackay and was inconsistent with evidence of a bus trip from Rockhampton.  She said the trafficking commenced at the end of 1999 but there was evidence that Mr Evan was working in Sydney for at least some of that period.  Her evidence was internally inconsistent.  She may have deposited money into Mr Evan's account at the request of other drug dealers with whom she was working and who also knew him.  Other people involved in the drug trade may have been using Mr Evan's account. 

[14]  Mr Evan did not give evidence.  The experienced barrister appearing for him made no application for re-directions. 

[15]  The judge explained to the jury the real issues for determination in the case, the elements of the offence and the prosecution case.  She adequately placed before the jury the defence case.  A Weissensteiner direction could only have strengthened the prosecution case and weakened the defence case.  I do not comprehend Mr Evan's contentions in which he relies on the cases of Connolly and Connolly (No 2).  Mr Evan has not demonstrated any error in respect of the judge's summing up.  His contentions in his written outline of argument have not demonstrated any reason supporting the extension of time to appeal against his conviction. 

[16]  I now return to his oral application for leave to adduce further evidence in this appeal.  Mr Evan contends that the letter from his New South Wales employer dated 14 August 2008 answers the primary judge's observation to the jury that the letter before the jury did not contain any details of the consistency with which Mr Evan worked over that period.[7]  There are obvious difficulties in that submission.  The letter of 14 August 2008 refers to him working as a casual for an average of 38 hours a week.  It does not establish that he worked every week during that period for 38 hours or what days and hours he worked each week.  This evidence was available at trial.  Although it is slightly more detailed than the evidence led at trial, it adds nothing of significance, even were the original letter available.  It certainly does not establish that there is a significant possibility, or that it is likely that, if this evidence had been before the jury, a reasonable jury would have acquitted him: Gallagher v The Queen;[8] Mickelberg and Mickelberg v The Queen;[9] R v Main;[10] and R v Katsidis; ex parte A-G (Qld).[11]  The application to receive the further evidence should be refused.  Mr Evan's oral submissions do not suggest that if an extension of time were granted, he would have any realistic prospects of success in an appeal against conviction. 

[17]  Mr Evan's application for an extension of time to appeal against conviction is almost eight months out of time.  He has not produced any evidence to demonstrate an acceptable reason for that delay.  It is noteworthy that in 2006 he was a self-represented litigant in the Queensland Court of Appeal: see R v Evan, Robu and Bivolaru.[12]  When he was convicted and sentenced in Cairns in September 2007, he must have understood that time limits applied to the appeal process.  But in any case, he has not demonstrated that, even were an extension of time granted, he would have any real prospects of success in an appeal against conviction.  His application for an extension of time to appeal against conviction should be refused.

[18]  I turn now to the application for an extension of time to apply for leave to appeal against sentence.  Mr Evan was aged 37 and 38 years at the time of the offences and 45 years old when sentenced.  He had a relatively minor criminal history commencing in 2000 for possessing dangerous drugs and possessing utensils or pipes.  He was fined without conviction.  During 2003 and 2005 he was dealt with for street offences and bail breaches. 

[19]  The prosecutor at sentence contended that it was an aggravating feature that Mr Evan had actively recruited Ms McReaddie to sell drugs for him when it was obvious that she was a drug addict.  He himself was not a user or addict and his motivation was purely for financial gain.  He did not co-operate with the administration of justice.  Deterrence, both personal and general, was an important consideration.  The prosecutor asked for a head sentence in the range of 12 years imprisonment, automatically involving a declaration of a serious violent offence requiring 80 per cent of the sentence to be served before parole eligibility. 

[20]  Mr Evan's counsel at sentence relied primarily on his written submissions with which we have been provided.  These set out Mr Evan's early history in Romania where he was born and spent his formative years, and the unfortunate circumstances leading to him coming to Australia in 1987 as a refugee with no English language skills.  They also emphasised the following.  Mr Evan had no similar prior criminal history.  The appropriate range of sentence was between seven and nine years imprisonment.  He relied on nine cases in support of that sentence, including the sentence imposed on Ms McReaddie.  She was notionally sentenced under s 13A Penalties and Sentences Act 1992 (Qld) to seven years imprisonment after pleading guilty.  Her trafficking was on a significantly larger scale than Mr Evan's, although at a lower level and involved two groups of suppliers with $200,000 moving through her hands.  She had a much more significant criminal history than Mr Evan and offended whilst on bail.  She was, however, a heroin addict and was co-operative with the police.  Mr Evan was addicted to gambling and heavy drinking, which had become progressively worse over recent years, and was the reason for his offending.  The appropriate sentence for him was between eight and nine years imprisonment.  The offence should not be declared to be a serious violent offence so that he would become eligible for parole after serving half the sentence.

[21]  In her sentencing remarks, the judge compared Mr Evan's case to Ms McReaddie's; noted that deterrence was an important feature; and referred to Mr Evan's personal circumstances and background, including his comparatively minor criminal history.  The judge ultimately determined to impose a sentence of nine years imprisonment with neither a declaration of a serious violent offence nor any parole eligibility date.

[22]  The judge appears to have taken all relevant factors into account and not to have relied on any immaterial considerations.  The sentence appears well within the appropriate range in all the circumstances: cf R v Mai.[13]  Mr Evan has certainly not demonstrated otherwise.  As he has demonstrated no acceptable reason for the significant delay in bringing this application nor that there are promising prospects of success in any appeal against sentence, the application for an extension of time to apply for leave to appeal against sentence should be refused.

Orders

1. The application to adduce further evidence is refused.

2. The application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence is refused.

[23]  FRASER JA: I agree with the orders proposed by McMurdo P and her Honour’s reasons for those orders.

[24]  PHILIPPIDES J:  I have had the advantage of reading the reasons for judgment of McMurdo P.  I agree with the reasons of her Honour and with the proposed orders.