Hellings v The Queen

[2005] HCATrans 255

[2005] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P65 of 2003

B e t w e e n -

STEVEN ALLAN HELLINGS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P89 of 2003

B e t w e e n -

STEVEN ALLAN HELLINGS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 APRIL 2005, AT 1.47 PM

Copyright in the High Court of Australia

__________________

McHUGH J:   The applicant was convicted of stalking in circumstances of aggravation under section 338E of the Criminal Code (WA) and of making a threat with intent to prevent the complainant doing an act she was lawfully entitled to do, contrary to section 338A(c) of the Criminal Code (WA). He seeks special leave to appeal against the decision of the Court of Criminal Appeal of the Supreme Court of Western Australia upholding the convictions and refusing leave to appeal against the sentences.

The Court of Criminal Appeal held that, despite the inadmissibility of certain parts of the evidence admitted at trial, no miscarriage of justice resulted from the inclusion of that evidence.  The Court of Criminal Appeal also rejected the applicant’s arguments concerning alleged defects in the directions given to the jury by the learned trial judge. 

The applicant seeks to re-agitate in this Court the correctness of the reasons of the Court in respect of these two matters.  Neither of them raises any question that would warrant the grant of special leave to appeal.  Furthermore, the decisions of the Court of Criminal Appeal on these points were clearly correct.

The applicant also claims that his counsel failed to object to certain evidence contrary to the applicant’s wishes.  The Court of Criminal Appeal correctly held that there were sound forensic reasons for not objecting to the evidence.  For that reason alone, the case is not one for the grant of special leave.  That is because it is not possible to say that there has been any miscarriage of justice.  But, independently of these considerations, it is a mistake to think that a convicted person can have his or her conviction quashed merely because counsel has refused to follow the accused’s instructions.  Until counsel’s retainer is withdrawn, counsel has unlimited authority to conduct the case in the manner that counsel thinks is in the best interests of the client  Counsel is not bound to follow the client's wishes, R v Birks (1990) 19 NSWLR 677 at 683-684. If the client is dissatisfied with the choices of counsel, the client’s remedy is to withdraw the counsel’s retainer. This ground has no prospect of success.

The application is out of time.  Given that the application has no prospects of success, the proper order is that the application for an extension is refused and the application is dismissed.

Accordingly, the application for special leave is dismissed.

Pursuant to rule 41.11.1 we direct the Registrar to draw up, sign and seal an order that the applications are dismissed.  I publish our joint reasons.

AT 1.48 PM THE MATTER WAS CONCLUDED