R v Croft [2008] VSCA 61

Court of Appeal (Vic)|2008-04-17|Before: REDLICH and KELLAM JJA and OSBORN AJA

Criminal law - Application for extension of time to appeal against conviction - Principles to be applied in considering application - Application refused.

1 I will call on Kellam JA to deliver the first judgment.

**3 On 18 June 1988 police arrested the applicant, David Reweti Croft, on a charge of trafficking in amphetamine. The evidence before the court was that undercover police officers, Angela King and Gary Attrill attended at premises in the Nepean Highway at Seaford that day purporting to be drug buyers. At the time there were a number of persons present at these premises. One of the undercover police officers was equipped with a recorder and listening device. It is asserted that whilst the police officers were at the premises the applicant arrived carrying a brown paper bag. The applicant was introduced to the undercover police officers as 'Geoff'. After some discussion, undercover police officer King went outside to a vehicle and returned with $10,000 which was handed over to the applicant in her presence. The applicant then handed over the paper bag to the undercover police officers. Upon that occurring, the premises were raided by police and all persons present were arrested. The contents of the brown paper bag were analysed by a forensic scientist and found to be powder which weighed 446.25 grams in total, of which 27.59 grams were found to be pure methylamphetamine.

4 A contested committal hearing took place between 31 July 1989 and 3 August 1989. The applicant and four co-accused were committed for trial. On**

Tuesday 29 May 1990 the applicant was arraigned before a County Court judge. He pleaded guilty to one count of trafficking in a drug of dependence.

**5 On Wednesday 30 May 1990 the applicant was convicted of the offence and sentenced to be placed upon a Community Based Order for a period of two years with a requirement that he undertake 50 hours of community work. He was asked by the sentencing judge if he consented to entering into such an order. The applicant consented to do so and signed an acknowledgement of such consent on the order.

6 On 28 February 1992 the applicant appeared before Moe Magistrates' Court where he was convicted of assault with a weapon, possession of a prohibited weapon and being unlawfully upon premises. He was sentenced to a total sentence of six months' imprisonment on such charges. Those convictions breached the Community Based Order which had been imposed on him on 30 May 1990. On 15 July 1992 the County Court found the breach proven but took no further action. There is no suggestion that on this occasion the applicant made any complaint about the earlier order that had been made by the County Court judge.

7 On 21 February 2007 the applicant filed notice of application for leave to appeal against conviction. The ground upon which the applicant seeks to rely is stated upon the application to be as follows:**

The evidence 1 lb of methylamphetamine produced to the Court 3 years later was not original evidence and had been stolen by police Russell Street Drug squad from police safe.

8 On 3 December 2007 pursuant to Rule 2.08(2) of the Supreme Court (Criminal Procedure) Rules 1998 the Registrar of the Court of Appeal notified the applicant of his decision to refuse the application. On 10 January 2008 and pursuant to Rule 2.08(4) of the Rules the applicant gave notice of his election to have his application for extension of time determined by the Court of Appeal.

The principles which govern an application for extension of time

**9 The principles governing an application for extension of time in which to make an application for leave to appeal are not in doubt.

10 In R v O'Keefe[1] the Full Court adopted the principles as stated by Gowans J in delivering the judgment of the Full Court in R v Darby[2]. These principles may be summarized as follows:

(a) the intention of the statutory time limit is to secure finality, and compliance is required in the ordinary case;

(b) extension of time by the Court is an exercise of discretion and the applicant must put material and considerations before the Court in order to persuade the exercise of discretion in favour of an extension;

(d) the longer the time which elapses since the expiration of the statutory period the more exceptional will the circumstances have to be;

(e) the practice of the Court is not to grant a considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(f) a reasonably satisfactory explanation of the reasons for failure to comply with the statutory requirements needs to be forthcoming.

11 These principles were cited, with approval, by the Court of Appeal in R v Davis[3] where Winneke ACJ said:[4]**

It is to be emphasised that the court's decisions upon applications of this kind involve discretionary considerations, and the longer the time which elapses between the closure of the statutory time limit and the date of the application, the more exceptional will the circumstances have to be.

In the case of R v Davis the Court refused the application before it.

**12 In R v Davis the period of delay between the conviction of the applicant and his application for extension of time was slightly more than three years. In the case before us the period of delay in making application was nearly 17 years. The delay is such that the applicant would be required to establish that most exceptional circumstances apply in his case.

13 The application is not supported by any affidavit material. However, a reading of the statement of the applicant attached to his application, together with a further statement placed on file and consideration of his oral submissions made before us today establish that he contends as follows:**

That subsequently one of the police officers involved in the investigation, a Wayne Strawhorn, has been convicted of 'corruption offences'.
That in his case police had 'stolen their own evidence'. By this I understand the applicant to contend that the amphetamine which was removed from the premises at the time of the police raid was not the powder which was the subject of an exhibit put before the Court.
That at no stage did he make any admissions of guilt.

**14 Furthermore, he contends that the judge who sentenced him was aware of police corruption, that corruption being that the powder was substituted. This morning the applicant informed us that on the occasion before his sentence, he informed his legal adviser and others that the powder which was produced in a bag as an exhibit was different from that which had been shown in a photograph taken of him with the bag on the date of the raid. Furthermore, the applicant contends that it was because of the judge's knowledge of that police corruption and the substitution of the powder that he was acquitted of the charge of possession of a drug of dependence.

15 Mr Adrian Castle, a solicitor employed in the Office of Public Prosecutions has sworn affidavits dated 9 August 2007 and 26 March 2008 which are before us. The transcript of the plea advanced on behalf of the applicant on 29 May 1990 has not been retained by the OPP. Given the effluxion of time, that is hardly surprising. However other documents have been obtained from the OPP file which has been held by the Victorian Government Archives. Those documents include the sentencing remarks made by the judge on Wednesday 30 May 1990.

16 As stated above, the applicant made oral submission in support of his application before us today. His submissions were lucidly and politely made and reflect the sense of grievance he holds by reason of his belief that the police were involved in corrupt conduct in substituting talcum powder for powder containing amphetamine. However notwithstanding the applicant's belief about this matter most of his contentions must be rejected. First, it is true that the index of depositions exhibited before us reveals that Detective Sergeant Wayne Strawhorn had made a statement and intended to give evidence on the trial of the applicant.

17 The depositions taken at the committal hearing and to which by Mr Castle referred in his affidavit reveal that Detective Sergeant Strawhorn was involved as a 'controller' in the investigation into the drug trafficking which resulted in the arrest of the applicant. There is, however, no connection whatsoever between that investigation in 1990 and the offence of trafficking pseudoephedrine of which Strawhorn was convicted in June 2006. That conviction in June 2006 related to an offence alleged to have occurred in May 2000.

18 The fact that years later a police officer, who was involved as one officer in the investigation of the applicant, was convicted of drug trafficking in entirely different circumstances can bear no relevance to the conviction of the applicant in 1990. That is obviously so notwithstanding the strongly and no doubt genuinely held opinion of the applicant to the contrary.

19 The assertion that the applicant was 'acquitted' of possession of methylamphetamine is true but the circumstance is that, upon the applicant having pleaded guilty to a count of trafficking in a drug of dependence, not surprisingly the prosecution led no evidence on the count of possession and a verdict of acquittal was entered. It was not a verdict after trial before a jury. Furthermore, the transcript of the sentencing remarks of the judge makes it clear and beyond argument that the applicant pleaded guilty to one count of trafficking before the judge. Clearly the sentencing remarks refer to matters which were put before his Honour in the course of a plea of mitigation. They refer to numbers of personal details relevant to the applicant that can have been only the subject of a plea before his Honour by counsel on behalf of the applicant. Although the applicant states that he did not plead guilty, the contemporaneous record makes it clear that he entered a plea of guilty before the judge. As he said this morning and as is clear from the transcript of sentencing remarks, he was represented by counsel when he did so.

20 There is before us no material which would permit the conclusion that the applicant has demonstrated that there are exceptional circumstances which would justify the exercise of discretion in his favour to grant an extension of time to give notice of an application to seek leave to appeal conviction after the extraordinary delay which has occurred in this case, and for which no satisfactory explanation is provided before us. The explanation given candidly by the applicant before us was that the reason for delay was that he became aware that Detective Sergeant Strawhorn had been convicted in the Supreme Court of offences of "corruption" and that such a conviction confirmed his opinion that Strawhorn had engaged in corrupt behaviour in his case many years earlier. That explanation, candid as it is, simply cannot throw any light upon the prospect of the appeal being successful nor is it sufficient to establish a proper explanation for the inordinate delay.

21 It is clear that on an application such as this the applicant must put forward material which demonstrates satisfactory reasons for his failure to comply with the statutory time limit. This the applicant has not done. Furthermore in the circumstances of the very long delay in this case, the applicant would be required to demonstrate that the proposed appeal has merit and a probability of success. This has not been demonstrated by the applicant. There is no material before us other**

than the assertion of the applicant, that confirms that police were involved in substituting talcum powder for the amphetamine which was originally seized and analysed by forensic chemists. However even if that assertion were correct it would not mean that the applicant could establish innocence of the charge to which he pleaded guilty and does not explain why he pleaded guilty after, as he asserts, that fact became clear to the judge. I would refuse the application as there is no reasonable prospect of success nor is there any reasonable explanation to explain the inordinate delay in making application to extend time.

**22 I might add that the above consideration by me of the merits of the application does not take into account the serious difficulty that the applicant would face in seeking leave to withdraw his plea of guilty should the application for extension of time succeed. The principle in relation to that matter is beyond argument. Save in exceptional circumstances an appellate court will not entertain an appeal against conviction based on a plea of guilty unless it appears that on the admitted facts the applicant could not have been convicted of the offence in law, or unless it is apparent that the applicant did not understand the nature of the charge, or did not intend to admit he was guilty.[5] There is no material before us to indicate that a miscarriage of justice has occurred, so as to permit an appeal against conviction to proceed notwithstanding the plea of guilty which was entered by the applicant at a time when he was represented by counsel nearly 17 years ago.

23 The requirement that a reasonably satisfactory explanation for the failure to comply with the statutory time limit will not be met where, as here, the reasons proffered do not explain why the conviction the subject of complaint was not challenged at any time since the conviction was entered, when all the relevant facts relied upon by the applicant have always been known to him, and where no impediment existed to his bringing this application at any time since his conviction.**

**24 For the reasons given by Kellam JA, I would refuse the application.

25 I also agree that the application should be refused, for the reasons stated by Kellam JA.

[1] [1979] VicRp 1; [1979] VR 1 (McInerney, Menhennitt and McGarvie JJ).

[5] R v Murphy [1965] VicRp 26; [1965] VR 187 (Herring CJ, Sholl and Adam JJ).

Supreme Court (Criminal Procedure) Rules 1998

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