Criminal Law and Practice (W.A.)—Trial—Application for adjournment—Accused through no fault of his own suddenly without counsel—Adjournment refused—Conduct of defence by accused—Whether miscarriage of justice—Criminal Code of Western Australia, s. 689 (1)*. * Section 89 (1) of the Criminal Code (W.A.) provides: "The Court of Criminal Appeal on any . . . appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the Court may, not withstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."
Decisions
December 19. The following written judgments were delivered: - BARWICK C.J. The applicant for special leave was indicted before the Supreme Court of Western Australia on three counts: first, of unlawful assault; second, of unlawful restraint; and, third, of rape. He pleaded guilty to the first but not guilty to the other two. In the result, he was convicted by the jury and sentenced to a term of imprisonment. The ground upon which the applicant seeks special leave to appeal from the decision of the Court of Criminal Appeal, which by majority dismissed his appeal to that Court, is that the trial judge erred in refusing his application to adjourn the trial to enable him to obtain the services of counsel and that the refusal so seriously prejudiced him in his trial that it constituted itself a miscarriage of justice. (at p577)
2. The applicant applied for legal aid and it is common ground that he did all that was required of him in order to secure legal aid for his defence of the charges. The matter came before the Court on two occasions prior to the date of his trial on which he was represented by counsel. The purpose of the matter coming before the Court on those occasions was to arrange for an adjournment in the case and, in the long run, for the fixing of a date for the trial. It may be taken that he had every reason to think that counsel who was provided for by legal aid and appeared for him on those two occasions was not briefed merely for the purposes of the adjournment or for the fixation of a date for trial but was briefed for him in his defence. It may also be taken…
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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Details
AGLC
McInnis v The Queen [1979] HCA 65
Case
[1979] HCA 65
Decision Date
CaseChat Overview and Summary
McInnis was the appellant in this case before the High Court of Australia, appealing against his conviction for murder. The Crown was the respondent. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence in the context of a murder trial.
The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant, specifically statements made by him and items seized from his person, following his arrest. Furthermore, the Court had to consider whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles, particularly concerning the appellant's belief as to the necessity of using force.
The Court held that the evidence obtained from the appellant was unlawfully obtained, as the arrest was not made on reasonable suspicion. However, it further determined that the trial judge had correctly exercised their discretion to admit this evidence, applying the principles established in *Bales v The Queen*, which allow for the admission of unlawfully obtained evidence if its probative value outweighs its prejudicial effect. Regarding self-defence, the Court found that the jury directions were deficient, as they failed to adequately convey that the appellant's belief as to the necessity of using force, even if mistaken, was to be judged by the circumstances as he perceived them.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.