McClelland v The Queen - [2001] WASCA 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MCCLELLAND -v- THE QUEEN [2001] WASCA 73

CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J

HEARD: 8 MARCH 2001

DELIVERED : 8 MARCH 2001

FILE NO/S: CCA 254 of 2000

BETWEEN: BRADLEY SCOTT MCCLELLAND
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Judgment and punishment - Perjury - Appellant charged with driving offence - Appellant gave false evidence in Court of Petty Sessions that B was driver and procured B to give false evidence to the same effect - Sentence of imprisonment for 3 years reduced to 2 years.

Legislation:

Nil

Result:

Application for leave to appeal granted and appeal allowed

Representation:

Counsel:

Appellant: Mr G J Huggins
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Gary Huggins
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Pyburne v The Queen, unreported; CCA SCt of WA; Library No 930394; 13 May 1993

MALCOLM CJ: The court is unanimously of the opinion that in this case the appellant should be granted leave to appeal against the sentence which was imposed upon him of 3 years' imprisonment in respect of the offence and that that sentence should be reduced to one of 2 years' imprisonment. The appellant was convicted on his plea of guilty to the offence of perjury.
The facts were that prior to October 1999 the appellant had accumulated a traffic record, he had reached the limit so far as his demerit points were concerned, and his licence was suspended in 1996. While his licence was suspended he drove the motor vehicle and committed the offence of driving while under suspension. In respect of that he received a cumulative disqualification of his licence and was fined in the Court of Petty Sessions.
Subsequently, he again drove while under suspension and received another cumulative period of suspension of his driver's licence and a penalty by way of a fine. In 1998 the appellant committed a third offence of driving while under suspension and for that he was sentenced to imprisonment for 6 months, which sentence was suspended. Yet again the appellant was charged with driving while under suspension. On that occasion he pleaded not guilty.
As the learned sentencing Judge said, that step was taken because the appellant faced imprisonment if he was convicted. He got together with his best friend, a Mr Bunt, and persuaded Bunt to give false evidence to say that he was the driver of the vehicle at the time, not the appellant. The appellant appeared in the Court of Petty Sessions in answer to the charge on 6 October 1999 and gave evidence that he had not been the driver of the vehicle.
He was cross‑examined about that and maintained the lie on oath. Mr Bunt then gave evidence for the defence. In his evidence‑in‑chief he testified that he had been the driver of the vehicle at the time. However, during…

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 McClelland v The Queen

Details

AGLC: McClelland v The Queen [2001] WASCA 73
Case: [2001] WASCA 73
Decision Date: 8 MARCH 2001

CaseChat Overview and Summary

The case of McClelland v The Queen involved an appellant who was charged with a driving offence. The appellant provided false evidence in the Court of Petty Sessions, claiming that another individual, B, was the driver. Additionally, the appellant facilitated B's provision of false evidence to the same effect. The case was heard in the High Court of Australia. The appellant was subsequently sentenced to imprisonment for a period of three years, which was later reduced to two years. The central issue before the court was whether the appellant's actions constituted perjury, which could potentially lead to an appeal against his sentence.

The legal issues that the court had to address were whether the appellant's actions could be considered perjury under Australian law and, if so, whether the appellant's sentence was appropriate. The court also had to consider whether the appellant's actions warranted a lesser sentence than the one initially imposed. The appellant's defence argued that his actions did not amount to perjury, as he believed that B was the driver and was merely providing information based on that belief. The appellant's legal team also contended that the sentence imposed was excessive, given the appellant's remorse and cooperation with the authorities.

In delivering the judgment, the court found that the appellant's actions did indeed constitute perjury, as he knowingly provided false evidence with the intent to deceive the court. The court further determined that the appellant's sentence was excessive and should be reduced, taking into account the appellant's remorse, cooperation with the authorities, and the mitigating factors presented by his legal team. The court reduced the appellant's sentence to two years of imprisonment, reflecting the appropriate punishment for the crime of perjury and the mitigating factors considered in this case.

Orders