McCullagh v The Queen - [2022] HCATrans 43

[2022] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B43 of 2021

B e t w e e n -
PETER JOHN McCULLAGH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 18 MARCH 2022, AT 1.31 PM

EDELMAN J: In accordance with the Court’s protocol for sitting remotely, I will announce the parties’ appearances.

MR J.C. TREVINO, QC appears with MS B.R. BILIC for the applicant. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC appears with MS S.L. DENNIS for the respondent. (instructed by the Office of the Director of Public Prosecutions (Qld))

EDELMAN J: Yes, Mr Trevino.

MR TREVINO: May it please the Court. The applicant requires an order dispensing with the time limit provided by rule 41.02.1.

EDELMAN J: Is that opposed, Mr Heaton?

MR HEATON: No, it is not.

EDELMAN J: Yes. You have that extension, Mr Trevino.

MR TREVINO: Thank you, your Honour. This application for special leave concerned the exercise of a discretion to extend time for a conviction appeal under section 671(3) of the Criminal Code (Qld). Similarly‑worded but not identical provisions apply across State and Territory jurisdictions. The question that arises is whether an applicant for an extension of time within which to appeal a conviction who cannot advance a cogent explanation for a lengthy delay is required to show that an extension of time is necessary to prevent a substantial injustice.

It was common ground in the Court of Appeal that the applicant did not have a satisfactory excuse for the delay of 16‑and‑a‑half months between his conviction and the filing of his application for an extension of time. It was also common ground that three of the four grounds of appeal proposed by the applicant had no merit. That left for consideration the applicant’s proposed ground that the verdicts of the jury were unreasonable. Significantly, the ultimate result of success on that ground would be an outright acquittal without a need for a retrial.

Justice Crow, in dissent, would have granted leave to extend time on this ground. After a comprehensive review of the evidence, his Honour considered that a combination of factors led to a reasonable argument on that ground, and that conclusion can be found at paragraph [109] of the reasons, application book page 118. Justice Morrison, with whom Justice Mullins agreed, considered that the delay was explained in part by a deliberate decision not to appeal - that can be found at paragraph [2], application book 102.

This finding was of significance to the way in which the discretion was ultimately exercised by the majority. Justice Morrison considered that, by reason of the deliberate delay, the applicant was required to show that an extension of time was:

demonstrably necessary to prevent a substantial injustice”.

That is paragraph [3] of the reasons, application book 102. In the end…

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 McCullagh v The Queen

Details

AGLC: McCullagh v The Queen [2022] HCATrans 43
Case: [2022] HCATrans 43
Decision Date

CaseChat Overview and Summary

In *McCullagh v The Queen*, the applicant, McCullagh, appealed to the Full Court of the Supreme Court of South Australia against his conviction for the offence of assault occasioning actual bodily harm. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the Full Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions. Specifically, the court had to determine if this evidence was relevant to the issues in the trial and, if so, whether its probative value outweighed its prejudicial effect, pursuant to s 137 of the *Evidence Act 1929* (SA).

Gleeson J, delivering the judgment of the Full Court, reasoned that the prior convictions were not relevant to any issue in the trial. The prosecution had not sought to use the evidence to establish identity, motive, intent, or any other matter that would render it admissible under the general exceptions to the rule against admitting evidence of prior convictions. Consequently, the evidence was inadmissible under s 137 of the *Evidence Act 1929* (SA) because its prejudicial effect far outweighed any potential probative value. The court found that the admission of this evidence had occasioned a miscarriage of justice.

The Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders