SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P: The application for an extension of time in which to apply for leave to appeal against conviction and sentence should be dismissed for the reasons given by Philippides J.

2. WHITE JA: I agree with the reasons of Philippides J and the order which she proposes.

3. PHILIPPIDES J:

Background

The applicant was charged on complaint by the respondent, Detective Andrews, in the Magistrates Court at Cairns with one count of possession of tainted property pursuant to s 92(1) of the Crimes (Confiscation) Act 1989 (Qld).  When the matter came before the magistrate, counsel for the applicant was successful in obtaining a ruling that evidence obtained from police searches was inadmissible as a result of non‑compliance with the provisions of the Police Powers and Responsibilities Act 2000 (Qld).  No further evidence being offered, the complaint was dismissed by the magistrate. 

4. The respondent brought an appeal to the District Court at Cairns against the dismissal of the charge pursuant to s 222 of the Justices Act 1886 (Qld).  That appeal was heard by Judge White.  Upon the determination of the appeal on 30 October 2003, the applicant was convicted of the charge.  Prior to being sentenced, the applicant brought an application for leave to appeal against his conviction pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), which was dismissed by the Court of Appeal on 7 May 2004: Andrews v Henderson [2004] QCA 145.

5. Thereafter, on 15 July 2004, the applicant was sentenced by Judge White to 18 months imprisonment for the offence.  At the time, the applicant was in custody in Victoria awaiting trial in that jurisdiction.  After serving sentences imposed in Victoria (see R v Henderson & Warwick [2009] VSCA 136), he was arrested and transferred to Queensland to serve the 18 month sentence imposed in 2004.

6. The applicant now applies to this Court for an extension of time within which to seek leave to appeal against his conviction and to appeal against his sentence, having filed the application on 14 June 2011.

Grounds for application for extension of time

7. In his application for an extension of time, the applicant pointed to his being in custody in Victoria and “not informed of being sentenced” until he was arrested and returned to Queensland.  The applicant also relied on new evidence becoming available.

8. The proposed Notice of Appeal raises the following grounds of appeal against conviction: “I did not have a fair trial and new evidence has come to light in another Trial held at the Supreme Court at Brisbane Matter No BS 1246/03”. Should leave be granted, it is apparent from the Notice of Appeal, as augmented by the applicant’s written submissions dated 20 July 2011, that the applicant would seek to raise the following matters by way of grounds of appeal against conviction:

• He did not have a fair hearing before the District Court.

• “He ran out of funds and tried to obtain legal aid but was ineligible and forced to proceed unfairly on his own before Judge White.”

• It is in the interests of justice in this matter that the court be made aware of “new evidence generated in the Federal Court of Australia at Melbourne No VSC 512 of 2005; Supreme Court of Victoria at Melbourne No 506 of 2007; Supreme Court of Queensland at Brisbane No BS 1246/03”.

• White DCJ “erred at law in his interpretation of the law in this matter”.

• There were deficiencies in respect of the evidence before White DCJ in that “the police did not disclose all of the evidence in the matter”; the “police destroyed the evidence long before it got to any of the Courts”; the applicant “could not produce any evidence, due to the police destroying it by putting it in the bank”.

• The trial judge took into account non-probative prejudicial evidence and admitted and took into account irrelevant evidence.

9. In an affidavit sworn 18 August 2011, the applicant raised further contentions concerning the sufficiency of the evidence before Judge White, contending there was no evidence to support the conviction and raising the following complaint:

“That one or more of the respondent’s officers saw and photographed the evidence that was destroyed by dispersion so that I could not call it and Judge White did not see it and only some of the photos were presented making the whole case unfair

That one or more of the respondent’s officers admits the evidence in paragraph 35 and gives that admission in the civil matter No: BS1246/03 and not in Judge White’s case

That evidence was withheld from the matter before Judge White that is crucial to the case and that is the statement of Mr. Dredge showing the legitimate purpose that the money is in Queensland for, this evidence is presented in Matter NoBS1246/3 in the Queensland Supreme Court”.

10. In respect of the application for leave to appeal against sentence, the applicant seeks to argue the following matters, if granted an extension of time:

• He was not present and not represented at sentence. Although the sentencing judge referred to comments made by Mr Boe, the applicant was not represented at the sentence hearing by Mr Boe and the reference to comments by Mr Boe were made at another time and taken out of context: paras [27]-[30] affidavit sworn 18 August 2011.

• The sentencing judge failed to consider properly the totality principle.

• The sentence imposed was manifestly excessive.

11. After the hearing of the applications in this Court, a copy of the judgment of Judge White of 30 October 2003 finding the applicant guilty of the charge of possession of tainted property: Andrews v Henderson [2003] QDC 481, a copy of the transcript of the sentence hearing of 15 July 2004 and a copy of the affidavit of Mr Dredge sworn 15 March 2004 filed in BS 1246/03, all of which were not contained in the material before the Court, were obtained and provided to the parties so that they could make further submissions if they wished.

The dismissal of the application for leave to appeal in May 2004

12. As mentioned, on 7 May 2004, the applicant’s application for leave to appeal against conviction was dismissed: Andrews v Henderson [2004] QCA 145.  The applicant was then represented by Mr Boe.  The factual background to the application for leave to appeal was outlined by McPherson JA as follows at [2]-[5]:

“At about 1.10 pm on 20 April 2002, Det Snr Const M G Andrews, who is the respondent to this application and the complainant in the magistrates court, went with other police officers to unit 241 at the Reef Palm Hotel at Cairns. They were making inquiries about a robbery which had recently taken place and had an ‘interest’ in a Mr Prem Welch, who was staying in unit 241. They knocked on the door and were admitted by the female occupant. On entering the unit they saw cannabis and equipment for using or smoking it. In the ensuing search, they also located 39.1g of pure cocaine and some $3,100 in cash. Welch was later charged and convicted of possession of that drug on an indictment to which he pleaded guilty: R v Welch [2004] QCA 108.

While the search was taking place, Welch arrived at the unit together with the applicant Henderson and another person. When the applicant saw the police there he turned aside as if to go away. However, another police officer Det Snr Const Michelle Clarke, who had been posted to watch for the arrival of Welch, asked the applicant to step inside the unit, which he did. He was asked if he had any money on him and produced a ‘bumbag’ containing a bundle of $100 and $50 notes amounting in all to $5,350 together with a further $350 in cash from his person.

Detective Clarke had earlier seen the group of three men arrive at the motel in a Toyota sedan driven by the applicant, who is a resident of Victoria. When questioned he claimed they had walked there, but Clarke’s evidence on this point was later accepted by the learned judge, who characterised the applicant’s assertion to the contrary as ‘a deliberate lie’. The police went on to search the car, a procedure which was at first held up by the need to locate the key. It was found in the applicant’s possession. In the boot of the vehicle, the police discovered a backpack bag, inside which was a smaller overnight bag. In it was a quantity of Australian currency amounting in total to $592,600. The applicant later suggested that the amount of money in the car had been larger, but in the end he specifically disclaimed any suggestion that the police had taken the shortfall. If true, it would only have served to increase the total amount in his possession.

In addition to the money, some cannabis was also found in the boot of the car, together with utensils or ‘paraphernalia’ associated with it. The applicant was in due course charged on a complaint by Det Andrews in the magistrates court at Cairns with offences in respect of all three of these items. It is, however, only with the third charge that we are concerned here. The details given in the bench charge sheet dated 7 May 2002 for that charge are ‘Possession etc of property suspected of being tainted property’ under s 92(1) of Crimes (Confiscation) Act 1989.”

13. McPherson JA (with whose reasons the other members of the court agreed) observed that the decision of Judge White that the magistrate erred in law in respect of the exclusion of the evidence of the search was not challenged. The principal proposition urged before the court on that occasion was that the appeal to the District Court was incompetent, being an attempt to appeal against what was no more than an interlocutory ruling of the magistrate in the course of hearing the complaint.  McPherson JA observed that the same or a similar submission, advanced by Mr McCreanor of counsel in the appeal before Judge White had been rejected.  The reasoning of the judge at first instance was that the order made by the magistrate dismissing the complaint had the effect of finally disposing of it, so that it was that order that was the subject of the appeal to the District Court under s 222 of the Justices Act.  Judge White thus concluded that, while the magistrate’s ruling as to the admissibility of evidence was sought to be overturned, it was more properly characterised as a ground of appeal rather than the order appealed against.  McPherson JA held that that conclusion was correct and that there was no substance to the ground of complaint that the appeal to the District Court was incompetent.

14. In addition to considering the correctness of the trial judge’s conclusion on that matter, McPherson JA noted a further matter raised as to whether the learned judge should have been satisfied that the charge was made out, stating at [14]:

“Mr Boe, perhaps rather faintly, submitted that White DCJ was not justified in being satisfied beyond reasonable doubt that, leaving aside the sum of $375 in notes found on Henderson’s person, it was reasonable to suspect that the whole of the amount of $597,950 was intended for use by Henderson in connection with the supply of cocaine in a trafficable quantity, and that the amount of $5,350 in the bumbag had originally been part of the total sum found in the boot of the car.”

15. McPherson JA found that there was nothing in the submissions on that issue of fact to persuade him that leave to appeal should be granted in order to challenge those findings, observing at [14]:

“It was within his Honour’s power under s 119 of the District Court Act to draw such inferences on the appeal before him, and there was evidence on that hearing which plainly supported a conclusion to that effect. There was no explanation at any time of why the applicant should have had such a large sum in cash in his possession apart from the inevitable and reasonable suspicion that it was being used to purchase drugs.”

16. McPherson JA also addressed an argument that, at the hearing of the complaint before Judge White, some of the evidence from which inferences were drawn, had not been presented at the Magistrates Court hearing, even though it had been available to the prosecution at the time of the hearing.  In dismissing the argument, McPherson JA noted at [16]:

“The evidence in question was that of Inspector Straatemeier and consisted of a statement or statements made to him by Henderson in the course of his later investigation of Henderson’s complaint that the amount of money found in the boot of the car had originally been larger than $592,600 and that the balance was not accounted for. The fact, however, that the prosecution had other evidence that might or might not perhaps have sufficed to support the complaint did not deprive the complainant of the right to adduce the substantial evidence which he did have to prove that issue beyond reasonable doubt. The party upon whom the onus of proof lies is entitled to choose from the available evidence those parts of it as are best adapted to proving it, and, if that evidence is properly admissible, is not obliged to run the risk of relying on lesser or other proof of his case. Had the police prosecutor contented himself with adducing Inspector Straatemeier’s testimony in place of the cogent evidence of search, finding and seizure in the car and in the motel unit, he might, for all we know, have failed to prove it. Moreover, in those circumstances, there having been a hearing on the merits, the defendant might reasonably have expected to obtain a certificate of dismissal of the complaint under s 700(1) of the Criminal Code, which under s 700(2) would be a bar to further prosecution of the same cause. In view of the uncertainties affecting the application of s 17 of the Code to offences prosecuted otherwise than on indictment (as to which, see Kennedy Allen’s Justices Acts (Queensland), 3^rd ed, at 384-386), the prosecutor might reasonably not have wished to take the risk of calling only Inspector Straatemeier’s testimony. A dismissal of the complaint on that evidence would have amounted to a dismissal on the merits inviting a certificate barring a further prosecution for that offence.”

The application for an extension of time to apply for leave to appeal against conviction

The principle in Grierson

17. The respondent contended that, in relation to the application for leave to extend time to appeal conviction, the applicant having already had an application to appeal his conviction dismissed on the merits in 2004, any further appeal would be incompetent and leave should be refused accordingly. It was contended that the authorities demonstrate that where an appeal court has dismissed an appeal or an application for leave to appeal on the merits, there is no jurisdiction to hear a further appeal.

18. There is no doubt, as the respondent contends, that the right of appeal to this Court created by s 668D of the Criminal Code 1899 (Qld) is exhausted once the court has decided an appeal to it on its merits and the court has no jurisdiction to hear a further appeal: R v MAM [2005] QCA 323, R v Nudd [2007] QCA 40.  Moreover, that position applies notwithstanding that an applicant would seek by the proposed appeal to establish a miscarriage of justice by relying upon what is said to be fresh or new evidence: R v Ali [2008] QCA 39.  The well established line of authority to that effect emanates from Grierson v The King (1938) 60 CLR 431.  In Grierson, the High Court noted at 435 that the entitlement to appeal a conviction is statutory and that as a matter of construction:

“…a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.”

19. The respondent submitted that, although the present applications are brought under s 118(3) of the District Court of Queensland Act 1967, there is no relevant difference in that statutory basis of appeal and s 668D of the Criminal Code.

20. In R v AP [2003] QCA 445, the applicant brought a second application to extend time to appeal against conviction on different grounds from the first application which had been dismissed on the merits.  This Court had regard to argument that it had no jurisdiction to hear the second application for an extension of time.  The President referred to Grierson and R v Smith [1968] QWN 50, R v Smith (No 2) [1969] QWN 10 and R v Kenny [2000] QCA 69 as suggesting that the court had no jurisdiction to determine a second application, but also noted Re Sinanovic’s Application (2001) 180 ALR 448, as indicating an alternate view.  However, her Honour did not express a concluded view, finding the grounds of appeal sought to be argued were without substance.

21. Davies JA observed that the principle stated in Grierson was based on the statutory nature of an appeal and the finality of a decision given on such an appeal and that it was said in Grierson to apply equally to a dismissal on the merits of an application for leave to appeal.  However, Davies JA noted (at [39]-[40]) that, while the application of the principle to cases in which a previous appeal has been dismissed on its merits was beyond doubt, its application to an earlier decision dismissing an application for leave to appeal was less clear.  His Honour observed that such an order on its face appeared to be an interlocutory one, notwithstanding that it may be on the ground that the appeal would fail on its merits.  He noted the authority of the Smith cases referred to by the President, where the principle was applied in such cases and expressed the view at [40] that:

“… there is a great deal to be said for the application of this principle to applications for leave to appeal against sentence in this Court as those applications are, in practice, treated as appeals.” 

22. Davies JA did not find it necessary to reach a final conclusion on that question, since in the matter before the court, what had previously been dismissed was an application for an extension of time within which to appeal against conviction. That was much more clearly an interlocutory order notwithstanding that the application was dismissed because the court thought that there were no merits in the applicant’s proposed appeal. His Honour concluded that such an order did not preclude the court from hearing a further such application, “though if it were based on the same grounds it would be bound to fail”.

23. In R v Riley [2010] QCA 91, the court considered a second application for an extension of time within which to appeal against conviction and sentence after an earlier application had been considered, including the merits of the grounds of appeal, and dismissed.  The second application raised grounds which were characterised as substantially different from those argued previously.  Ann Lyons J did not express a concluded view as to whether there can be a further application for an extension of time after an unsuccessful earlier application, but observed at [29]:

“In determining whether to exercise the discretion to extend the time for appealing the Court considers whether there is a good reason to account for the delay and essentially whether the Court considers that it is overall in the interests of justice to grant the extension. It is clear that in this respect the viability of the proposed appeal must be considered.”

24. That approach was endorsed in R v Woodman [2010] QCA 162, where an extension of time to appeal against sentence was sought in circumstances where the court had previously dismissed an application for leave to appeal against sentence.  In refusing leave, White JA stated at [19]-[20]:

“Unless convincing reasons are advanced for the delay, an explanation is given as to why the matters that the applicant now wishes to agitate were not raised on the previous application, and the grounds of appeal are, in truth, different from those previously considered by the court and are likely to be successful, the application is, as Davies JA observed in A, bound to fail.

The overriding principle must be whether the court considers that it is in the interests of justice to grant the extension of time. As is clear here, this Court has already considered the grounds of appeal now advanced by the applicant. Nothing fresh has been raised and the application for leave to appeal the sentence and the merits of any appeal have been fully considered.”

25. The present case is not one where sequential applications for leave to extend time have been brought. The present application is brought in the context of a previous application for leave to appeal against conviction being dismissed on the merits; that is, the application was dismissed on the basis that, if leave were granted, it would fail on its merits.  It is abundantly clear from the judgment of McPherson JA that there was a careful examination of the merits of the proposed appeal on that occasion. There is substance therefore in the respondent’s submission that the principle in Grierson is applicable, even though the previous application was one for leave under s 118(3) of the District Court of Queensland Act 1967, and that the application for extension should thus be refused on the ground that it would be futile, as an appeal would be incompetent.

Is it in the interests of justice to grant an extension of time?

26. But even adopting the less restrictive approach taken in cases where the court has previously dismissed an application for an extension of time within which to appeal, which is seen as more clearly interlocutory in nature than an application for leave to appeal, and as not of itself precluding a further application for extension of time, I do not consider the present application should be granted.  The applicant has not provided any satisfactory explanation for the delay in bringing the application for an extension of time, nor has he demonstrated that it is in the interests of justice to grant the extension, particularly when the viability of the proposed appeal is considered.

Delay

27. In relation to the delay in bringing the application, in his written submissions in support of the application dated 20 July 2011, the applicant stated that he “was in custody from 24 April 2004 until some time in 2009 during which time the appeal before Judge White was finalised”. He asserted that he was “unrepresented and uninformed of the matter before Judge White at the time of the proceeding taking place” and was not told of the proceeding before Judge White “officially” until arrested for extradition proceedings and was not told of the sentence handed down “in any official capacity” until admitted to the Brisbane Correctional Centre. He had heard about the sentence “in a round about way” from reading the Victorian Court of Appeal’s decision in about 2009 in respect of offences in that jurisdiction for which he was sentenced after being sentenced by Judge White and at the extradition hearing.

28. Notwithstanding those assertions, the transcript of the sentence hearing demonstrates beyond question that Mr Boe appeared again on the applicant’s behalf on that occasion and invited the judge to proceed to sentence the applicant in his absence.  That is made clear by the following extract of the proceeding on 15 July 2004:

“MR BOE:  Could I indicate, your Honour will have noticed Mr Henderson is not here.  I have written instructions on his behalf that he consents to being sentenced in his absence.  In that regard, Mr Murray has pointed me to some authorities which suggest that the procedure can be followed and, certainly with Mr Henderson’s consent, we would urge that it be followed.  In that respect, I have taken Mr Murray through some written submissions as to what would be appropriate for sentence.  I can hand that up now or at some other stage.”

29. In the circumstances, the explanation offered by the applicant for the very long delay in bringing the application is completely unsatisfactory.

Prospects

30. As regards the applicant’s contention that he did not receive a fair trial, the applicant submitted in oral argument that, at the hearing before the District Court resulting in his conviction, he was “forced to appear without legal representation and that the prosecutor did not produce all the evidence he had”, which was later produced in other matters.

31. Insofar as the applicant relies on his not being legally represented before the District Court judge in the hearing resulting in his conviction, it is instructive to refer to the chronology referred to in Judge White’s reasons of 30 October 2003, which sets out the many adjournments the applicant was accorded in order to finalise his legal representation.  The trial judge’s decision to refuse any further adjournment and require the applicant to proceed unrepresented cannot be said to have been unfair, when regard is had to all of the circumstances of the case.  The trial judge outlined at some length the situation that preceded his decision to refuse any further adjournment prior to determining the appeal on 30 October 2003 as is apparent from the following extract from Andrews v Henderson [2003] QDC 481 at pp 1-5:

“I commenced the hearing of this appeal on the 12th of February 2003.  On that date the respondent was legally represented.  For reasons which I published on the 30th of May 2003 I made an interim ruling that the evidence of the respondent’s possession of the money was admissible.  However, that ruling did not finally dispose of the appeal and I made no orders as a consequence thereof.  As a result of that ruling it became necessary for me to continue the hearing of the appeal.  I left it to the parties to see if they could agree upon a program for the further hearing of the appeal.  Eventually I set the matter down for further hearing to commence Monday, 27 October 2003.

On Monday, 20 October 2003 the respondent applied for the further hearing of the appeal to be adjourned because he did not have legal representation and wished to do so.  I refused the application on the basis that I was not satisfied that the respondent had made reasonable attempts to obtain legal representation.  Since these reasons will substantially dispose of the appeal, it is appropriate that I include my reasons for making such a finding in so refusing the respondent’s application for an adjournment.  It is therefore necessary to refer to the history of the matter.

After publishing my interim reasons on the 30th of May 2003 nothing happened until, on the 25th of July 2003, the appeal was mentioned before me at the request of the appellant, who wished to have a date set for the further hearing.  That mention was adjourned to the 30th of July 2003.  On that date I ordered that the further hearing of the appeal be set down for Wednesday, the 10th of September 2003.  At all times up to the 30th of July, in the Magistrates Court and on the appeal, the respondent was represented by Mr McCreanor of counsel and/or Mr Rose of Cameron Price, solicitors of Cairns.

The matter was mentioned before me again on the 29th of August 2003 at the request of Mr A Kimmins of counsel, acting on behalf the respondent.  Mr Kimmins told me that the respondent had very recently sought to engage Ryan & Bosscher, solicitors in Brisbane, and himself (also from Brisbane), to act for the respondent in the further hearing of the appeal.  He asked if the hearing of the appeal could be further adjourned from the 10th of September 2003 to enable the respondent to finalise the retainer of Ryan & Bosscher and himself and to enable him to properly prepare for the further hearing of the appeal.  On the 29th of August 2003 I ordered that the appeal be set down for further hearing on the 27th of October 2003 and listed the matter for mention on the 12th of September 2003.

On the 12th of September 2003 the respondent appeared in person without representation.  It was apparent he had been unable to finalise the retainer of Ryan & Bosscher and Mr Kimmins.  The transcript shows all that took place but, in particular, I advised the respondent that if he wanted the hearing of the appeal adjourned from the 27th of October 2003, if he was unable to obtain legal representation by that date, he would need to demonstrate that he had made reasonable efforts to obtain legal representation.  I indicated that I expected that that would involve making a formal application for legal aid.  I further advised him that I would expect any application for a further adjournment to be supported by an affidavit.  I ordered that the matter be mentioned again on the 20th of October 2003.

On the 20th of October 2003 when the matter came on for mention, the respondent appeared by telephone.  He was in the office of a Victorian solicitor, Mr Sirianni.  Again the transcript will show all that took place.  But in particular, the respondent asked for a further adjournment of the hearing of this appeal because he had been unable to obtain legal representation.  His application was not supported by any affidavit giving particulars of his efforts to obtain legal representation.  He had, however, told me he had not made any application for legal aid.  He had also gone to see Mr Sirianni the week before the 20th of October.

The respondent’s difficulty was not that legal representatives were unwilling to act for him but his ability to pay for legal representation.  However, he has failed to properly demonstrate his difficulty; he has failed to provide any information about his income, assets and liabilities.  If he is a complete pauper, one would have thought he might at least possibly be eligible for Legal Aid.  One would have thought if he was genuine, he would have tried to obtain legal aid.

The respondent was aware of the need to obtain legal representation for the further hearing of the appeal from shortly after the 30th of May 2003.  On the 29th of August 2003 he was granted an adjournment from the 10th of September to the 27th of October.  There is no evidence that he did anything meaningful to address his inability to pay for his legal representation until he went to see Mr Sirianni the week before the 20th of October.  For the above reasons, I considered that the respondent had not made reasonable efforts to obtain legal representation and refused his application for a further adjournment.”

32. Given that fulsome chronology, it is not surprising that the applicant made no complaint about being unfairly required to proceed without legal representation by Judge White when the application for leave to appeal against conviction came before this Court in 2004.

33. As already mentioned, one of the matters raised before this Court on the previous application was whether the charge was made out and the nature of the evidence presented before the District Court, including the argument that there was additional available evidence that ought to have been called before the magistrate. The applicant also then had the opportunity to raise such matters as the complaint that the judge took into account non-probative prejudicial evidence and irrelevant evidence and that he “erred at law in his interpretation of the law”.

34. As to the contention that there is new evidence, which in the interests of justice should be considered by this Court, it is not supported by an application to allow new evidence. Although it was asserted that new evidence may be extracted from other proceedings, the applicant did not outline the nature of that evidence, nor how it was said to constitute new or fresh evidence, nor how it impacted on the findings of the District Court judge.

35. The one slight qualification to that concerns the Supreme Court proceeding BS1246/03, which relates to a proceeding under the Criminal Proceeds Confiscation Act 2002 (Qld).  The applicant contended that a statement was given in that proceeding by a Mr Dredge “showing the legitimate purpose” of the possession of the money.  In fact, an examination of the affidavit of Mr Dredge reveals that he had a shop for sale and that he was approached by a person in February or March 2002 who told him he had “persons interested” in purchasing his shop.  This person made further inquiries in April 2002.  In May 2002 he indicated that he knew of a potential buyer, the only problem being the police had seized the potential buyer’s money.  The potential buyer was the applicant who was introduced to Mr Dredge in late June 2002.  Mr Dredge stated that the serious negotiations for the purchase of the property by the applicant were initiated after the police had seized the cash (in April 2002).  There is nothing in the affidavit of Mr Dredge that would cause me to consider that leave ought to be granted to challenge the decision of Judge White that the charge before him was made out.

36. The applicant also referred in paragraph 7 of his affidavit sworn 18 August 2011, inter alia, to a decision of the Administrative Appeals Tribunal concerning disputed assessments of income tax which resulted from information obtained from Queensland Police: Henderson v Commissioner of Taxation [2005] AATA 606.  In that case, it was determined that the amount of $592,000 in cash taken by the police was not assessable income as a result of evidence given and called by the applicant to the effect that the money represented the proceeds of sale of family jewellery.  The Administrative Appeals Tribunal was careful in paragraph 17 of its reasons to note the charge before the District Court was not that the money could reasonably be considered as proceeds of crime, but that it was reasonable to suspect that it was tainted property, being property “used or intended to be used by a person in or in connection with the commission of a serious offence”, namely that the applicant likely intended to use the money in the purchase of illegal drugs.  That decision does not assist the applicant; nor is it apparent how the other cases referred to by the applicant assist him.

37. In his affidavit, the applicant also made reference to various authorities concerning the trial judge’s duty to assist self-represented litigants. I am unable to discern any manner in which it could be said that the trial judge failed to give proper assistance to the applicant on the occasions when he was not represented. I have already outlined the lengths the trial judge went to to adjourn the appeal before him so as to permit the applicant to obtain legal representation.

38. Given the delay for which there is not satisfactory explanation and the lack of substance in any of the proposed grounds of appeal, I would refuse the application for an extension of time in which to appeal against conviction.

Sentence application

39. The applicant has not previously brought an application for leave to appeal against his sentence, so the considerations arising from the principle in Grierson do not apply.  Given the very substantial delay and the lack of merit in the proposed grounds of leave to appeal against sentence, I would likewise refuse the application for an extension of time to apply for leave to appeal the sentence.

40. I have already addressed the issue of delay for which no adequate explanation was offered. Nor is there any merit in the submissions that the sentencing judge erred in the exercise of his discretion in imposing sentence.

41. In sentencing the applicant, Judge White noted that he was a man of mature age with a lengthy criminal history, which included a conviction in 1992 for receiving stolen property for which a sentence of five years imprisonment was imposed. He had regard to the mitigating effect of the applicant’s deprived childhood, but observed that it decreased as a factor for consideration in a mature offender who continued to offend. His Honour also took into account the fact that the applicant was remanded in custody at the time of sentence in Victoria for offences which, on their face, were more serious than the possession of tainted property charge.  Judge White noted the fact that if there were other sentences to be served this would ordinarily be taken into account in imposing sentence and operate to lessen the sentence to be imposed.  However, the Victorian matters had yet to be dealt with and his Honour observed that if the applicant was convicted, it would be expected that the Victorian Court would mitigate the sentence it imposed by having regard to the sentence which would be outstanding in Queensland.

42. Judge White noted that the possession of approximately $600,000 in cash in the circumstances of the present case would allow for the imposition of the maximum penalty, a matter which the applicant’s counsel acknowledged. (The applicant’s contention that Mr Boe did not appear at sentence and therefore could not have made such submissions is not, as I have already noted, borne out by the transcript of the sentence hearing which clearly shows that Mr Boe was present).

43. As for the complaint that the sentencing judge did not have due regard to the totality principle in respect of the Victorian charges, it is without merit. Judge White’s approach was entirely orthodox. As his Honour anticipated, when the applicant was sentenced in Victoria, the court had regard to the sentence he had imposed and was careful to ensure that the sentence imposed for the Victorian offences was ameliorated accordingly: R v Henderson & Warwick [2009] VSCA 136 at [217].

44. Given the applicant’s lengthy criminal history at the time of sentence and the very large amount of money involved, a sentence of 18 months imprisonment was clearly not manifestly excessive, particularly when regard is had to the comparatives of R v Gadaloff [1998] QCA 458 and R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259 which was mentioned in R v Byrne [2010] QCA 33.  The more pertinent of the two is Gadaloff.  It concerned the wife of a man who defrauded the Brisbane City Council and was sentenced to two years imprisonment for money laundering and to 12 months imprisonment for possession of tainted property.  Mrs Gadaloff had no prior criminal history and had a two year old child at the time of sentence.  It was submitted on sentence that she had participated because she was dominated by her husband.  Her role had been to help hide the proceeds of her husband’s theft by opening a bank account in her maiden name in which substantial sums of money passed and she also opened two safety deposit boxes in which almost $800,000 in cash was discovered.  She had the sole right of access to those boxes, although they were always accessed at her husband’s direction and, on all but one occasion, in his presence.  Although the accompanying offence of money laundering attracted a higher maximum penalty, the sentence of 12 months imprisonment for possession of tainted property in the circumstances of Mrs Gadaloff plainly supports the 18 month sentence imposed upon the applicant.

Other charges

45. The complaint issued in 2002 also charged the applicant with unlawful possession of a dangerous drug and unlawful possession of a thing used in connection with the smoking of a dangerous drug. On the determination of the appeal at the District Court, upon the complaint being dismissed, the applicant was not convicted of those two offences. The applicant is correct in his contention that the court order sheet which records that he was convicted and sentenced for those offences is wrong and requires rectification accordingly. That is a matter for the District Court registry to attend to.

Order

46. I would order that the application for an extension of time in which to apply for leave to appeal against conviction and sentence be dismissed.