McQuillan v The Queen (No 2) - [2023] NSWSC 443

Supreme Court

New South Wales

Medium Neutral Citation: McQuillan v R (No 2) [2023] NSWSC 443
Hearing dates: 19 April 2023
Date of orders: 28 April 2023
Decision date: 28 April 2023
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
I order:
1. Leave to amend the Plaintiff's Summons be granted.
2. Amend Summons to remove the Crown as a respondent/defendant.
3. Grant an extension of time to lodge the appeal.
4. Leave to appeal be granted.
5. The appeal be allowed.
6. Set aside the interlocutory order of the Local Court at Forster made on 30 September 2022 disallowing the withdrawal or traversal of the guilty plea in the matter R v Jasmine McQuillan bearing JusticeLink file No. 2020/0061374.
7. Remit the proceedings to the Local Court to be dealt with by a different Magistrate according to Law.
8. Second Respondent to pay the Applicant's costs as agreed or assessed.

Catchwords:
STATUTORY APPEAL — Appeal from decision of the Local Court — Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b) — where plaintiff sought leave to withdraw guilty plea for offence of larceny as a bailee before Local Court — leave refused — issues of apprehended bias and procedural fairness — whether to grant leave to appeal and remit matter to Local Court as parties agreed — leave granted
COURTS AND JUDGES — Bias — Apprehended bias — pre-existing association between Magistrate and person involved in proceedings — where need for recusal earlier accepted — reasonable apprehension of bias established

Legislation Cited:
Crimes Act1900 (NSW), s 125
Crimes (Appeal and Review) Act2001 (NSW), s 53
Criminal Procedure Act1986 (NSW), s 207
Evidence Act1995 (NSW), s 65
Mental Health (Forensic Provisions) Act1990 (NSW), s 32

Cases Cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
McQuillan v R (Supreme Court (NSW), Yehia J, 7 December 2022, unrep)
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
R v Boag (1994) 73 A Crim R 35
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Category: Principal judgment
Parties: Jasmine McQuillan (Plaintiff)
R (First Defendant)
SC M Todd (Second Defendant)
Representation:
Counsel:
Ms D Hawkins (Plaintiff)
Ms S Williams (Second Defendant)
Solicitors:
McGirr & Associates Pty Ltd (Plaintiff)
The Crown Solicitor’s Office (Defendants)

File Number(s): 2022/368247
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

30 September 2022

Before:

Hawkins LCM

File Number(s):

2020/0061374

JUDGMENT

In February 2021 Ms McQuillan was convicted in the Forster Local Court of larceny as a bailee, an offence under s 125 of the Crimes Act1900 (NSW), having initially pleaded not guilty, she had then entered a guilty plea before McCosker LCM. The charge was that Ms McQuillan had fraudulently converted a hire car into her own property. The change in her plea…

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 McQuillan v The Queen (No 2)

Details

AGLC: McQuillan v The Queen (No 2) [2023] NSWSC 443
Case: [2023] NSWSC 443
Decision Date: 28 April 2023

CaseChat Overview and Summary

In the case of McQuillan v The Queen (No 2), the appellant, McQuillan, sought leave to appeal against a decision of the Local Court of New South Wales. The original matter involved a charge of larceny as a bailee, where McQuillan had entered a guilty plea. The dispute arose from the refusal of the Local Court to allow McQuillan to withdraw the guilty plea, which was subsequently appealed to the higher court. The appeal centred on issues of apprehended bias and procedural fairness. Specifically, the appellant argued that there was a pre-existing relationship between the Magistrate who presided over the case and another individual involved in the proceedings, which may have created a reasonable apprehension of bias. The case was heard by the Supreme Court of New South Wales, where the primary issue was whether the appellant should be granted leave to appeal the decision of the Local Court.

The legal issues before the court included whether the pre-existing relationship between the Magistrate and another party involved in the proceedings constituted an apprehended bias and whether the Local Court had failed to observe procedural fairness in refusing to allow the withdrawal of the guilty plea. The court had to determine if the appellant's concerns about bias were valid and if the Local Court's decision was flawed due to these concerns. Additionally, the court needed to consider whether the principles of natural justice and fairness were upheld in the proceedings.

The court found that the pre-existing relationship between the Magistrate and another individual indeed created a reasonable apprehension of bias. The relationship was such that it could reasonably lead to the belief that the Magistrate might not be impartial. The court acknowledged that the Local Court had earlier accepted that there was a need for the Magistrate to recuse themselves in another matter involving the same individual. This acknowledgment underscored the validity of the apprehension of bias. The court concluded that the Local Court's refusal to allow the withdrawal of the guilty plea was a result of the procedural unfairness arising from the apprehended bias. Consequently, the court granted the appellant leave to appeal, agreeing with the parties that the matter should be remitted to the Local Court for reconsideration.

Orders