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
Copyright in the High Court of Australia
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 result, Justice Morrison did not consider that the applicant’s prospects on the unreasonable verdicts ground were such as to overcome the unsatisfactory attempts to explain away the long delay in bringing the application. That is the ultimate conclusion at paragraph [39] of the reasons, application book 108.
This approach confined the discretion to an exercise involving only an assessment of the merits of the appeal as pitted against the unsatisfactory nature of the delay. By reducing the exercise in this way, other factors relevant to the consideration were not touched upon. Importantly, no consideration was given to the fact that success on the unreasonable verdicts ground would have resulted in an acquittal without any need for a retrial and that at the time of the application the applicant was facing a lengthy period of future imprisonment. He had, in fact, been sentenced to seven years imprisonment for the head sentence.
EDELMAN J: Mr Trevino, was the application for an extension of time heard concurrently with the substantive grounds and, if not, to what extent were the substantive grounds ventilated?
MR TREVINO: Your Honour, the application was heard discretely, and there was certainly some consideration given to the grounds of appeal in both the majority’s reasons and in the reasons of Justice Crow. Although your Honour would know that at paragraph [7] of the reasons Justice Morrison noted in respect of analysis of the unreasonable verdicts ground, which was the only ground that was considered in depth by the majority, that that would:
be a more truncated exercise than would be carried out were this the appeal itself.
EDELMAN J: Is the common practice to deal with applications for an extension of time separately from the substantive grounds, even where the appeal grounds may not raise, as they do here, issues that go to the whole of the trial facts?
MR TREVINO: Yes, your Honour. As I understand it, it is the common practice for the court to receive, or to hear argument on the application for an extension of time before the substantive appeal, but that is not always the case. I cannot provide your Honour with any examples of that, but that is my understanding of the practice of the court.
Your Honour, no reference was made in the majority reasons to this Court’s decision in Kentwell, and contrary to the submission of the respondent, the analysis conducted in Kentwell provides significant guidance to the proper exercise of the discretion in both extensions for time to appeal conviction and sentence. Its relevance is not confined to the legislative regime of New South Wales, given the similarities of the New South Wales provision with the criminal appeal provisions in Queensland and the other States and Territories.
Two aspects of the decision in Kentwell were relevant to the Court of Appeal’s decision: first, the nature of the discretion to extend time generally and, second, the nature of the merits assessment required in the exercise of the discretion. As to that first aspect, the obvious relevance, the decision contains significant commentary on the nature of the discretion such that the exercise of the discretion in Queensland should now be carried out in light of what is said there.
At paragraph 18 of our outline, application book 127, we attempt to draw out a number of competing considerations from the decision, particularly from paragraphs 29 through to 33 of the decision in Kentwell, which is at pages 613 to 614.
EDELMAN J: Mr Trevino, is it really just paragraph [3] of Justice Morrison’s reasons that you say contains the error of principle?
MR TREVINO: Your Honour, it is paragraph [3] and paragraph [39], the conclusion. So I can take your Honour to that, that is at application book 108. So at paragraphs [2] and [3], his Honour makes a finding of a deliberate choice not to appeal on the basis of legal advice, and then makes the observation at paragraph [3] as to the need then to demonstrate a substantial injustice. An analysis of only the unreasonable verdict ground then ensues from about paragraphs [5] through to [38], and then to arrive at a conclusion at paragraph [39], his Honour’s conclusion is expressed with the use of the words:
so as to overcome –
in that first sentence. Those words, “so as to overcome”, link assessment of the merits of the appeal to the lack of satisfactory explanation for the delay. So the merits are to be weighed directly against and must be such that they overcome the unsatisfactory explanation for the delay. Then the second sentence of paragraph [39] ‑ ‑ ‑
EDELMAN J: But, Mr Trevino, those are really the only relevant factors in this case, are they not? The one relevant factor to be considered on broad‑ranging discretion that this Court described in Kentwell is the very long delay and the circumstances of the delay, and another factor is the reasonableness of the prospects of success? Are they not really the only two factors that were in play?
MR TREVINO: Your Honour, in addition to those – they were certainly relevant factors – in my submission, the factor that required consideration by the Court of Appeal was the fact that the applicant was facing a lengthy future period of imprisonment for convictions involving serious sexual offending against a child, and in addition to that continuing impact upon his liberty there was a corresponding impact upon his reputation, and, in the particular circumstances of this case, as they pertained to the consideration of the unreasonable verdict ground, if the applicant was successful on that ground, there would be no need for a retrial, and thus considerations about a capacity to hold a new trial that is fair to both sides falls away.
There are no considerations as to witness availability or exhibits or evidence that have been lost or destroyed, and considerations as to the stress or trauma caused by a complainant, or to the complainant, by the prospect of having to give evidence again, also falls away, because the remedy is an acquittal. So those were also factors, in my submission, that the Court of Appeal was required to grapple with in this matter, in the specific circumstances of this matter.
GLEESON J: Is there any reason to think that they were not alive to those issues?
MR TREVINO: Well, they are certainly not explicitly referred to by the majority. So the majority conclusion at paragraph [39] refers only to the merits and to the length and reason for the delay. There is no reference to any consideration of the interests of justice more broadly, or those considerations explicitly.
GLEESON J: Is that not implicit in the reference to R v Tait?
MR TREVINO: Well, in R v Tait, which certainly did not purport to state exhaustively the considerations relevant to determination of an application for an extension of time, but in paragraph 5 of Tait, the court there suggested the exercise of a discretion requires the Court to consider overall whether it is in the interests of justice to grant the extension. But certainly, my submission is that that is not a feature of Justice Morrison’s consideration at paragraph [39]. His Honour only refers to the merits of the proposed ground and the explanation to what his Honour describes as the very long delay.
If I take your Honours to paragraph 11, which is the way in which the ultimate conclusion was expressed in Tait, that also demonstrates the error committed by the majority here, because the Court in Tait expressed its conclusion by reference to not only the merits and the delay, but also what the interests of justice required. The conclusion as expressed at 11 does not appear to raise any grounds to persuade this Court that the case is one which, in the interests of justice, requires a further appeal to be heard.
So, unlike the conclusion as expressed in Tait, there is no explicit reference here to what the interests of justice required in this case. Instead the approach was to posit a tug of war between only two factors, the delay as against the merits.
EDELMAN J: Mr Trevino, if you were granted special leave, and you were successful on an appeal, would the only order that you seek be to have the matter remitted back to the Court of Appeal to apply the correct test for an extension of time?
MR TREVINO: Your Honour, in my submission, this Court is well placed to re‑exercise the discretion and to allow an extension of time and remit the matter on that basis.
EDELMAN J: So that would then involve this Court assessing the reasonableness of the ground of appeal that was considered.
MR TREVINO: Yes, and in my submission, the approach taken by Justice Crow to that provides a sufficient basis from which an assessment could be made as to there being reasonable prospects on that ground of appeal, on the unreasonable verdicts ground.
EDELMAN J: But this Court would not have, would it, all of the material that concerns that ground of appeal?
MR TREVINO: No, I concede that point, your Honour, yes, that is correct.
EDELMAN J: The other issue would be, even if the matter were remitted to the Court of Appeal, would there be any prospect that, if the Court of Appeal were of the view that Justice Morrison expressed, that the prospects of success were not reasonable, that the other matters to which you refer, the lengthy term of imprisonment, the lack of likelihood of a retrial, could overcome or, in an assessment of all of the factors, could be sufficient to say, well, despite a lack of reasonable prospects of success, an extension of time should be granted?
MR TREVINO: Your Honour, we say that Justice Morrison went further than making an assessment as to whether there were reasonable prospects, but applied a higher standard or a bar, that is, that the applicant had to demonstrate a substantial injustice in terms of an assessment of the merits.
EDELMAN J: Well, that is not quite what paragraph [39] says. Paragraph [39], his Honour says that he is:
unable to conclude that the proposed appeal is viable or the prospects of success are reasonable so as to overcome the unsatisfactory attempts to explain away the very long delay –
That reads very much like a conclusion that the appeal is not viable and the prospects of success are not reasonable.
MR TREVINO: Yes. In response can I say two things, your Honour? The paragraph continues on:
And, the review above shows that an extension of time is not demonstrably necessary to prevent a substantial injustice.
In that first sentence of paragraph [39] I have emphasised the use of the words by Justice Morrison “so as to overcome”, which links assessment of the merits of the appeal to the lack of the satisfactory explanation, so that the merits are to be weighed directly against and have to overcome the unsatisfactory explanation for the delay, which speaks of something more than a simple merits assessment on the basis of whether reasonable prospects have been shown.
Then in the second sentence of paragraph [39] his Honour applies the high bar of a substantial injustice test. The reference to the review above:
And, the review above –
That is the review undertaken from paragraphs [5] to [38] of the reasons, and that review considered only the merits of the unreasonable verdicts ground. No other considerations were ventilated, so that the failure to demonstrate a substantial injustice can only then be a reference to the merits of that proposed appeal ground. So the merits on that ground were not so viable, or so reasonable, so as to overcome the unsatisfactory and lengthy delay so as to reach the high bar of substantial injustice. That is the basis on which the submission is put, your Honour.
Returning to Kentwell, clearly, the touchstone of the exercise of the discretion in every case is the interests of justice. Can I ask your Honours to turn to paragraph 30 of Kentwell - the CLR is 613. There, the Court referred to, in the first sentence, the approach to the exercise of the discretion taken in the New South Wales case of Young, and the plurality observed in the second sentence:
Correctly, the Court refrained from formulating any guideline for the exercise of the discretion, holding that the application was to be determined by asking whether “it is just under the circumstances that such an order should be made”. The wide discretion conferred on the Court . . . is to be exercised by consideration of what the interests of justice require in the particular case.
So the particular exercise of discretion would be very fact specific. The formulation and application of a test, as was done by the majority in this case, has the potential to distract attention from the broadly‑expressed and untrammelled discretion provided by the statute. The danger of the approach taken by the majority is that it will fail to take proper account of the very wide diversity of circumstances in which the discretion falls to be exercised.
As I said, what is missing from the majority’s conclusion at [39] of the judgment is any consideration of other relevant matters to an assessment of the interests of justice, apart from the delay and the merits. There is no explicit reference to what the interests of justice required in the case, and instead a tug of war is posited between only two factors, the delay as against the merits.
As was said in Kentwell, the interests of justice may pull in different directions, but reference to other relevant factors at play in this matter, in our submission, would have tempered the unfavourable considerations arising from the delay and placed them in a broader context. Certainly, the delay was lengthy and the explanation was unsatisfactory, but in the particular circumstances of this case, there was no prejudice to the Crown as a result of granting leave beyond what would have occurred if the appeal had been filed in the ordinary way.
As was observed by the Court of Appeal in DAQ [2008] QCA 75 at paragraph [10], which was a case unlike this matter where the applicant had waited until his sentence had almost expired before making the application, Justice Keane noted:
One can readily understand that statutory time limitations on appeals should yield to the concern that the judicial process may have
operated imperfectly in a particular case where there is no real prejudice to the public interest in the finality of litigation.
The respondent submits that Justice Morrison’s reference to “substantial injustice” in the context of a deliberate decision not to appeal was - and this is at paragraph 3.09 of the response, AB 142, so that:
was an unremarkable manifestation of the application of established principles –
and, in our submission, that is an argument that was similar to that advanced by the respondent in Kentwell and rejected by the Court, and can I take your Honours to page 612 of Kentwell, to paragraph 27, where the plurality deals with that argument, particularly the last two sentences:
The test of “substantial injustice” is suggested to encapsulate the importance of the principle of finality to the determination. The respondent submits that, in its practical application, the test of “substantial injustice” imposes no higher threshold than a test expressed as “what justice requires”.
That argument was explicitly rejected by the Court at paragraph 31, at CLR 614. The response goes on then to make reference to the two civil cases relied upon by Justice Morrison – I note the time, your Honours.
EDELMAN J: Thank you, Mr Trevino. Yes, Mr Heaton.
MR HEATON: The court was put in the position to be able to determine the ultimate question that was sought to be raised, or the questions that were sought to be raised on the appeal, and that is clear in the decision of Justice Morrison in paragraph [7] at appeal book 103. So that is the first point.
The second point is that it is important to appreciate that the judgment of Justice Morrison, with whom Justice Mullins agreed, was essentially - or should be considered in collaboration with the decision of Justice Crow in that Justice Morrison refers to having had the benefit of reading the draft reasons, and then, to the extent that he disagreed with the conclusion, he purported to offer additional remarks in order to explain why he had come to a different conclusion.
The point of that, in this context, is that in the decision of Justice Crow there is specific reference to - and this is at paragraphs [55] and [56] of the decision - what are the overarching applicable principles, and that is the concept of miscarriage of justice as it attends to the consideration of the questions raised in the appeal.
So whilst Justice Morrison may not have specifically referred to that, he did have the benefit of essentially dovetailing his additional remarks in with the remarks of Justice Crow, insofar as those perhaps formal or foundationary factors were concerned. It is also clear that his reference to the decision of Tait evidenced a clear understanding of what the applicable principles were that applied to the consideration that confronted them.
Can I next move to addressing the role that the deliberate decision to not appeal might have had in the consideration of an application to extend time and this is, I guess, referring to the passages that my learned friend just recently took the Court to at the tail end of our written material. Justice Morrison drew support for the proposition that the deliberateness of a decision to not appeal had some role to play in the overall decision as to whether or not an extension of time should be granted. He drew support for that proposition from two civil cases.
We do not seek to advance the contention that a conscious decision to not appeal in itself imports some additional burden or a hurdle upon an applicant when seeking to extend time, although in a broad sense, we say a conscious decision must have some role to play in the consideration as to the justice of any given case.
Whilst Justice Morrison drew from some civil cases, there is in fact support from criminal cases to the very same effect, and within the material that has been placed before this Court there is support for that proposition in the case of DAQ, particularly in the judgment of Justice of Appeal Keane, as he then was, at paragraph [11] of that decision, and at paragraph [12], and in the decision of Hansen, particularly at paragraphs 34 and 35.
EDELMAN J: Mr Heaton, accepting that that may be so, you do not suggest, do you, that even a conscious decision not to appeal would prevent the grant of an extension of time in circumstances in which, for example, there were reasonable prospects of success?
MR HEATON: No, we do not say that. In fact, we say ‑ ‑ ‑
EDELMAN J: What do you say then is the way in which paragraph [39] should be construed?
MR HEATON: We say that the decision of Justice Morrison, with whom Justice Mullins agreed, appears in the first sentence of paragraph [39]. That decision followed his independent assessment, as he was required, having regard to the question raised in the proposed ground of appeal, his independent assessment and analysis of the evidence and the merits or the prospects of success of that proposed ground. His conclusion, with which
Justice Mullins agreed, was that the proposed appeal was not viable. He then goes on to say:
or the prospects of success are reasonable so as to overcome the unsatisfactory attempts to explain away the very long delay in bringing this application -
which, in itself, is another unremarkable expression to describe an ultimate decision in a case such as this in light of the question raised. So they are really, in essence, two alternative ways of expressing the decision of the court. We say that the sentence that follows thereafter was in the context, surplusage, in that it is apparent that this was not a decision that involved any degrees of miscarriage of justice so as to stumble, because the degree of miscarriage of justice could not be said to be substantial. The court ‑ ‑ ‑
EDELMAN J: So, in effect, Mr Heaton, you say paragraph [39] really stands for the principle that, in the circumstances of the case, the lack of viability of the proposed appeal and the lack of any reasonable prospects of success mean that there is no injustice in refusing an extension of time.
MR HEATON: That is right, and, indeed, what other considerations that might follow such as the length of time that the applicant had yet to serve or whether or not he would get a retrial or an outright acquittal become inconsequential. Ultimately, it matters not about those things if, ultimately, the appeal is destined to fail. That was the decision of the majority in this case.
So we say that, in spite of what Justice Morrison said about the deliberateness or otherwise of the decision, in any event, he, and indeed the majority in this court, and indeed, Justice Crow as well, did precisely what was required of them, that is, to exercise their own independent assessment of the evidence to see whether or not the proposed appeal was viable.
They came to different conclusions about that, as is their discretion, as is the perhaps unremarkable exercise of an appeal. But it cannot be said, in our submission, that the comments that were made about the reasons for the decision were determinative in any way of the ultimate decision that the appeal was not viable. Those are our submissions in response, your Honour.
EDELMAN J: Thank you, Mr Heaton. Mr Trevino.
MR TREVINO: Thank you, your Honour. The Crown construction of paragraph [39] really renders otiose the observation made by Justice Morrison at paragraph [2] as to the deliberate decision that was
made, and then the statement of principle at paragraph [3] that a substantial injustice needed to be demonstrated.
But, if consideration is given to those paragraphs, the review that was undertaken in respect of the unreasonable verdict ground then, in construing paragraph [39], the second sentence of paragraph [39] is important, and does demonstrate that Justice Morrison applied a substantial injustice test to the assessment of the merits of this case, and in doing so, Justice Morrison relied on civil cases and, in our respectful submission, that was inapposite, because in a criminal context, the importance of finality has to be counterbalanced by the purpose of the appeal provisions to correct errors that impact directly on the liberty of offenders.
Considerations relevant to the principle of finality do not apply in the same manner and to the same effect in the civil sphere as they do in the criminal sphere, and the considerations relevant to the principle of finality in its application to an extension of time to appeal conviction or sentence were canvassed in Kentwell at paragraphs 32 and 29, and it was to those considerations that the Court of Appeal was required to grapple with in the exercise of its discretion here, not considerations as set out in civil authorities. Thank you, your Honours.
EDELMAN J: Thank you, Mr Trevino. The Court will adjourn for a short time to consider the course it will take.
AT 2.03 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.07 PM:
EDELMAN J: The proposed ground upon which special leave to appeal is sought would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. The application for special leave to appeal is dismissed.
The Court will now adjourn.
AT 2.07 PM THE MATTER WAS CONCLUDED