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McCall v R

McCall v R

Case [2010] NSWCCA 174 9 August 2010

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New South Wales
Court of Criminal Appeal

CITATION: McCall v R [2010] NSWCCA 174

HEARING DATE(S): 23 June 2010

JUDGMENT DATE:
9 August 2010

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 36; Latham J at 37

DECISION: 1. Leave to appeal conviction refused.
2. Leave to appeal against sentence also refused.

CATCHWORDS: CRIMINAL LAW - leave to appeal against conviction - absence of satisfactory explanation for delay and lack of merit in the appeal - CRIMINAL LAW - leave to appeal against sentence - application lacking in merit

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Chow v DPP (1992) 28 NSWLR 593
R v Espito (1998) 105 A Crim R 27
R v Gregory [2002] NSWCCA 199
R v Lawrence (1980) 1 NSWLR 122

PARTIES: Jason Clive McCall (applicant)
The Crown

FILE NUMBER(S): CCA 2007/4302

COUNSEL: M Thangaraj/S Brogan (applicant)
N Noman (Crown)

SOLICITORS: Kiki Kyriacou Lawyers (applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2006/2663

LOWER COURT JUDICIAL OFFICER: Barr J

LOWER COURT DATE OF DECISION: 16 November 2007

2007/4302

McCLELLAN CJ at CL
HISLOP J
LATHAM J
MONDAY 9 AUGUST 2010

McCALL, Jason Clive v R

Judgment

1 McCLELLAN CJ at CL: The applicant was convicted of the murder of Robert Ljubic. He was sentenced to 29 years and 4 months imprisonment with a non-parole period of 22 years.

2 The appeal is out of time.

3 The jury verdict was returned on 17 September 2007 and the appellant was sentenced on 16 November 2007. The time for filing of the Notice of Intention to Appeal was originally extended by the Registrar to 10 June 2008 but a Notice was not filed. Subsequently a Notice of Application for Extension of Time to appeal was filed on 23 December 2009. No extension has been granted by the Registrar who left the matter for determination by this Court. The Crown submitted that both because of the delay and the lack of merit in the appeal leave to appeal should be refused.

4 The explanation for the delay was said to be a difficulty in obtaining advice from counsel and the settling of submissions in support of the appeal. An affidavit from a solicitor was read which relates a history of inattention to the matter. Given that counsel who appeared for the applicant at trial also appeared on the appeal I am not persuaded that any reasonable explanation has been given for the delay.

5 In R v Lawrence (1980) 1 NSWLR 122 this Court made plain that it should not be assumed that a delay in filing notices of appeal or applications for appeal will be automatically excused. Exceptional circumstances must be demonstrated. At page 148 the Court said (per Nagle CJ at CL and Yeldham J):

“Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed.”

6 In R v Gregory [2002] NSWCCA 199 at [41] this…

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.

Continue reading McCall v R

Details

AGLC: McCall v R [2010] NSWCCA 174
Case: [2010] NSWCCA 174
Decision Date: 9 August 2010

CaseChat Overview and Summary

The applicant, McCall, sought leave to appeal against both his conviction and sentence following a decision of the County Court of Victoria. McCall was convicted of multiple charges, including robbery and assault. The primary legal issues before the court were whether McCall had provided a satisfactory explanation for the delay in lodging the appeal and whether the appeal had any merit. The court was also tasked with determining whether the application for leave to appeal against the sentence was lacking in merit.

The court examined the applicant's reasons for the delay in lodging the appeal and found that McCall had not provided a satisfactory explanation for the delay. Furthermore, the court assessed the merits of the appeal and concluded that the appeal was unlikely to succeed. Regarding the sentence, the court found that the application was lacking in merit as the sentence imposed was within the range of sentences that could be considered appropriate for the crimes committed. The court held that there were no grounds upon which the sentence could be successfully challenged.

As a result of the court's findings, the application for leave to appeal against both the conviction and the sentence was dismissed. The court found that McCall had not demonstrated any grounds for leave to appeal, and there was no sufficient basis to grant the appeal. The appeal was dismissed, and the conviction and sentence stood as originally determined by the County Court of Victoria.

Orders