Atkinson v The Queen

[2007] HCATrans 478

[2007] HCATrans 478

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B17 of 2007

B e t w e e n -

MICHAEL TODD ATKINSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 AUGUST 2007, AT 12.46 PM

Copyright in the High Court of Australia

MR B.G. DEVEREAUX, SC:   If it pleases the Court, I appear for the applicant with my learned friend, MS S.M. RYAN.  (instructed by Legal Aid Queensland)

MR M.J. COPLEY:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Devereaux.

MR DEVEREAUX:   Your Honours, this application arises out of the manner in which the Court of Appeal of Queensland dealt with an application for an extension of time within which to appeal.  The applicant was convicted of one count of indecent dealing with a child under the age of 16, who was in his care, and he was sentenced to six months imprisonment.  He was told by his trial counsel that he had good prospects of success for an appeal, but when he spoke to his solicitor about that he was advised against that course and he did not file an appeal within time.  In fact, over the course of about the next 11 or 12 months he spoke to a series of lawyers and received, in our submission, bad or no useful advice about getting up an appeal.

Finally, his account of all of that, your Honours, and also that he suffered from depression, was contained in his affidavit which was before the Court of Appeal.  That account was not challenged by cross‑examination in that court.  Yet the fact that the applicant received such bad advice did not satisfy the Court of Appeal as good reason for the delay, which was the first question the court had to consider when deciding whether to grant the extension.  The reasons are expressed by Justice Williams with whom Justices Keane and Muir agreed.  Justice Williams’ reasons in that regard are at page 29 of the application book.

So the applicant’s first argument is that the court failed to consider properly this very relevant and, indeed, central consideration and that such a consideration goes deeper than just this case, but to the administration of justice generally.  That, your Honours, is because the lawyers who gave the advice, which we submit was bad, were officers of the court.  The court’s bald conclusion that none of the material satisfied it that the applicant had established good reason for delay may be thought to tend to condone the inadequate conduct by the lawyers.  It was the bad advice that steered the applicant away from the court, from having access to the court.  It is a lawyer’s first duty to help people and that is just the justice for which the moment we mean the court, so it cannot be that ‑ ‑ ‑

HAYNE J:   Let it be assumed for the purposes of argument that the delay can be explained satisfactorily in the fashion you indicate.  What are we to do in face of Justice Williams’ conclusion that an appeal would not have good prospects of success?  I have in mind what his Honour says at page 30 between lines 30 and 40.

MR DEVEREAUX:   Yes, your Honours.  There are three things to note about this.  This is the second basis of attack which, we submit, can be made on the court’s decision.  In Queensland in the decision of Tait, which is in the materials, the test has been articulated as to whether there is a viable appeal.  As your Honour Justice Hayne has just pointed me to is where Justice Williams dealt with it.  Our submission is that the Court of Appeal did not make a finding that the appeal was unarguable or bound to fail or was futile.

In fact, what his Honour did can be understood in three categories:  first, found that the evidence which was under attack was not a major issue in the whole context of the trial; second, that the admissibility of the evidence did not “indicate that any appeal would have good prospects of success” and, third, that was partly, it seems, because particularly after this lapse of time.

Now, the first part of that was, with respect, not a meaningful comment.  It is difficult to see how the court could make a conclusion like that I understand without the full record of proceedings and in any case, if this was not a major issue, it should hardly have been in the trial.  The conversation being under attack had, we submit, extraordinarily prejudicial effect.

Second, it is not the appropriate test to apply whether the appeal has good prospects of success.  “Viable”, if that word is to be continued to be used, can only mean what in other cases is referred to as an arguable case or some prospects of success.  By other cases I refer to this Court’s decision in Jackamarra v Krakouer 195 CLR 516, a copy of which is not in our materials but which was sent to the Court for its consideration. So really the second point we make is that the wrong test was applied.

Third is that it was an irrelevant consideration and it is difficult to understand quite what his Honour meant when he said “particularly after this lapse of time”.  So his Honour said the evidence under attack was:

not a major issue and the admissibility of that evidence does not, particularly after this lapse of time, indicate that any appeal would have good prospects of success.

There are those three errors in that and that is how we deal with that.  The third basis on which we submit the finding can be attacked is that his Honour also took into account the fact that this applicant had prior convictions for aggravated assaults on females, which, we submit, was irrelevant.  But there is more to it than that.  It seems to lead to wrong reasoning, namely that because of those prior convictions, this applicant did not have much to gain by attempting to overturn his conviction.  That is in page 29 of the application book at about line 40.  There is a short paragraph there in the reasons of Justice Williams.

It is under these three bases that we submit this exercise of a discretion by the Court of Appeal was wrong, particularly the first basis, we submit, calls into consideration wider ramifications than just what matters to this particular applicant, so we do submit that this is an appropriate vehicle for a grant of special leave.

There is one other thing to say about the nature of this kind of case, your Honours, and that is this.  As a result of the advice he received, the applicant has not had access to the jurisdiction of the Court of Appeal.  The Court of Appeal denied him access to its jurisdiction and, in a sense, that is an original decision from which his only recourse, we submit, is this application to this Court.  Those are our submissions.

HAYNE J:   The only relief you would seek in this Court, it seems from your draft notice of appeal, is to in effect set aside the refusal of an extension, say there should be an extension, and then send it back for an appeal.

MR DEVEREAUX:   Yes, your Honour.  Precisely.  Thank you, your Honours.

HAYNE J:   Yes.  We need not trouble you again, Mr Copley.

We are of the opinion that there is insufficient prospect of success of an appeal to this Court to warrant the grant of special leave to appeal.  It is not in the interests of justice, either in the particular case or more generally, that there be a grant of leave.  Leave is refused.

The Court will adjourn to allow the establishment of the video link to Perth.

AT 12.54 PM THE MATTER WAS CONCLUDED