R v Gilbey[2010] QCA 4

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  Justice Douglas will deliver his reasons first.

DOUGLAS J:  This is an application for an extension of time within which to lodge an appeal against conviction only.

The applicant was convicted of possession of the dangerous drug methylamphetamine with a circumstance of aggravation on 13 October 2009.  He was sentenced on that date to 15 months' imprisonment.  He filed his notice of appeal on 26 November 2009 almost two weeks out of time.

The 15 months' imprisonment to which he was sentenced was to be served cumulatively upon the unserved 16 month period of previously suspended imprisonment.

This application was filed on 27 January 2010.  In it, the applicant seeks to explain his delay in lodging the notice of appeal by saying that he was sentenced to a term of imprisonment immediately after his conviction and the hearing of submissions about the appropriate sentence.  He said that resulted in his experiencing difficulties in obtaining legal advice and providing instructions to his solicitor and barrister because of the conditions of his imprisonment.  He has not descended into detail in explaining what problems he faced, but there is nothing to contradict what he says.

The applicant's conviction was based on circumstantial evidence linking him to a container found in a garden bed at a boarding house in Townsville which contained a crystalline substance yielding 6.7 grams of methylamphetamine.  The evidence linked the applicant to the container because of his proximity to its location just before it was found, his making an inquiry about it the next day and apparently sending a text message about it to a woman he knew and the finding of a roll of grey duct tape in the back of one of his vehicles, the torn end of which matched the torn end of similar tape on the package.

He agreed in cross-examination that he was a boilermaker by trade and had access to duct tape, but he denied using the utility in which the police found the relevant duct tape.  There was no evidence that his fingerprints or DNA were found on the package.  There was evidence that an unidentified female's DNA profile was found in a hair attached to the duct tape, but no evidence of any other DNA profile.  Although an eyelash was also identified as associated with the tape, no profile could be obtained from it.  No fingerprints were identified on the tape.

The applicant wishes to appeal on the basis the evidence did not support a conviction, because none of his DNA was found, presumably on the container sealed with duct tape.  He also asserts in his outline of argument that there was DNA located on the container of an unknown female and that there is no direct evidence to support the conclusion that he was at any time in possession of the container.

He also asserts that there was evidence from a potential witness who gave evidence at the committal hearing, who said that he had to leave his own dinner party to deliver “the drug item”, presumably the container, to the police station.

There was evidence from a Mr Bowen-Jones, who had become suspicious enough of the applicant's behaviour in the car park of the boarding house to cause him to look in the bushes near where the driver's door of the vehicle being driven by the applicant had been.  When he looked in the bushes he found a container sealed with duct tape, placed it in a different position just off the property and was asked the next morning by the applicant whether he had seen a container that had fallen off his car when he was backing out the previous night.

Mr Bowen-Jones had spoken to the proprietor of the property on the day he found the container and again after he had found and moved the container.  Mr Dryden gave evidence that he operated and managed the guest house and that he took the container from where Mr Bowen-Jones had relocated it to his, Mr Dryden's home, on the day after Mr Bowen-Jones found it, and later that evening took it down to the police station.

It is not clear whether Mr Dryden was the witness said not to have been called in the applicant's outline of submissions, but he is the only person referred to in the evidence who is said to have delivered the container to the police.

Mr Bowen-Jones' evidence of the applicant's conversation with him the morning after he found the container in the bushes was that the applicant asked if he had seen a container that had fallen off his car when he was backing out the previous night.  That evidence was not challenged in cross-examination.

The comment was made by the trial Judge when sentencing the applicant that he had been convicted on "very strong evidence indeed."  It seems fair to say that the circumstantial evidence relied on by the Prosecution was significant.

The authorities indicate that the applicant needs to address whether there is good reason to account for the delay in his lodging a notice of appeal and whether it is in the interests of justice to grant the extension.  See R v Tait [1999] 2 Qd R 667.

It is also relevant to consider the viability of any appeal to the extent that it is possible to make any assessment from the limited materials that are before the Court on an application for extension of time.  Even if there is no satisfactory explanation for the delay, an application to extend the time to appeal may be granted, if a refusal to do so could result in a miscarriage of justice.  See R v GV [2006] QCA 394 at [3].  See also R v Witsen [2008] QCA 31 at [3].

There was only a brief period of delay in lodging the notice of appeal in this case.  The argument relying on the absence of DNA evidence implicating the applicant was available on the evidence that was led on the trial.  We have not seen the transcript of counsel's closing addresses, or the summing-up, but it seems probable that the jury was addressed on the basis that the absence of DNA evidence linking the applicant to the container was significant.

In the circumstances, the appeal grounds do not appear to be strong, where the other circumstantial evidence is, as here, significant.  The submission that the Court ignored a potential witness's evidence does not seem justified on the material presently available.

There is, however, an explanation, if not a particularly convincing explanation for the delay in lodging the notice of appeal.  The applicant's conviction makes him liable to serve up to 31 months imprisonment.  Taking into account the limited period of the delay, it seems to me that it is in the interests of justice to grant the extension, at least to permit a fuller examination of the issue related to the absence of DNA evidence sought to be argued by the applicant, with the benefit of a full appeal record book.

Accordingly, I would order that his application for leave to extend the time within which to appeal against his conviction is granted and extend the time for filing his notice of appeal against conviction to 26 November 2009.

THE PRESIDENT:  I agree.

FRASER JA:  I agree.

THE PRESIDENT:  The orders are that the application for leave to extend the time within which to appeal against conviction is granted and the time is extended for filing the notice of appeal against conviction to 26 November 2009.