Criminal Law (Vict.)—Appeal to Supreme Court—Indictable offence—Conviction by County Court—Fine imposed payable by instalments—Default in payment—Sentence of imprisonment imposed—Right of appeal as if imprisonment a sentence imposed "on convicting that person of an offence"—No common right of appeal from sentences imposed by County Court—Whether right to apply for leave to appeal—Penalties and Sentences Act 1985 (Vict.), ss. 67, 70, 77—Crimes Act 1958 (Vict.), s. 567. Statutes—Construction—Literal construction unreasonable.
Decision
MASON C.J., DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. The question in this application for special leave to appeal is whether the Full Court of the Supreme Court of Victoria had jurisdiction to hear an application for leave to appeal against an order of the County Court of Victoria imprisoning a person who had defaulted in the payment of a monetary penalty.
2. The application is brought by Mr Max Milton Macalister. In October 1987 he was convicted in the County Court of handling stolen goods, an indictable offence under s.88 of the Crimes Act 1958 (Vict.). The learned County Court judge imposed a fine of $7,500 on the applicant. Pursuant to s.67 of the Penalties and Sentences Act 1985 (Vict.) ("the Act"), the judge ordered the fine to be paid by four instalments. The last instalment was payable on 23 February 1988. The applicant did not pay any of the instalments. On 9 September 1988, the Registrar of the County Court applied for an order that the applicant be imprisoned for a term on the ground that, for more than one month, he had failed to pay the monetary penalty imposed upon him in October 1987. The application by the Registrar was brought under s.70 of the Act which, so far as is material, provided: "70. If for a period of more than one month an offender defaults in the payment of a monetary penalty or of any instalment under an instalment order, the court may - ... (b) order that the person in default be
imprisoned for a term fixed in accordance with section 71(1) unless the person in default satisfies the court that he or she did not have the capacity to pay the monetary penalty or the instalment ..."
3. On 26 September 1988, the County Court judge ordered that the applicant be imprisoned for six months. The applicant then applied to the Full Court of the Supreme Court for leave to appeal against the order of imprisonment. His application was based on s.77 of the Act and s.567 of the Crimes Act. So far as is material, they provided: "77. If under s.70(b) a court orders that a person in default be imprisoned, an appeal lies from that order in the same manner as if that order were a sentence imposed by that court on convicting that person of an offence ..." "567. A person convicted on indictment or…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
MacAlister v The Queen [1990] HCA 15
Case
[1990] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, MacAlister, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Criminal Appeal of Queensland, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence and the directions given to the jury by the trial judge.
The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the judge's summing up to the jury adequately addressed the issue of self-defence. Specifically, the court had to consider the application of the *Evidence Act 1977* (Qld) concerning the admissibility of evidence of a person's character or previous convictions, and whether the jury had been properly instructed on the onus of proof in relation to self-defence.
The Court held that the admission of evidence of the applicant's prior convictions was prejudicial and that the trial judge had failed to give a sufficiently clear direction to the jury regarding the limited circumstances in which such evidence might be considered. Furthermore, the Court found that the summing up on self-defence was inadequate, as it did not sufficiently explain that the onus of proof for self-defence lay on the Crown once evidence raising that defence had been adduced. The principles applied concerned the fair trial rights of an accused and the proper application of evidence and criminal law principles.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.