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Merrilees v The Queen

Merrilees v The Queen

Case [2014] ACTCA 10 29 April 2014

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GREGORY JASON MERRILEES v THE QUEEN
[2014] ACTCA 10 (29 April 2014)

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against Registrar’s decision to grant leave for the convicted person to appeal out of time – Registrar is not an officer with statutory independence – Application to be heard de novo

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against Registrar’s decision to grant leave for the convicted person to appeal out of time – Insufficient prospect of success on the appeal – Application dismissed

Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Procedure Act 1986 (NSW), s 33(1)
Supreme Court Act 1933 (ACT), ss 37J(1)(b), 68, 370

Court Procedures Rules 2006 (ACT), r 5506, 5508, 5509, 5510, Subdiv 5.4.7.2,
Criminal Code 2002 (ACT), s 702(1)

Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616
Burrell v The Queen (2008) 238 CLR 218
Commonwealth v Pillifeant (1990) 23 FCR 397
Fleming v The Queen (1998) 197 CLR 250
Fox v Percy (2003) 214 CLR 118
Harris v Caladine (1991) 172 CLR 84
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198
M v The Queen (1994) 181 CLR 487
Parker v The Queen [2002] FCAFC 133
Ratnam v Cumarasamy [1964] 3 All ER 933
R v Orchard [2013] NSWCCA 342
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
The Queen v Hillier (2007) 228 CLR 618
The Queen v Meyboom (2012) 256 FLR 450
Traut v Faustmann Bros Pty Ltd (1983) 77 FLR 98

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 42 of 2013
No. SCC 24 of 2012
No. SCC 141 of 2012

Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 29 April 2014

IN THE SUPREME COURT OF THE     )
)          No. ACTCA 42 of 2013
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 24 of 2012
  )          No. SCC 141 of 2012

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

GREGORY JASON MERRILEES
Appellant

V
THE QUEEN
Respondent

ORDER

Judge:Refshauge J

Date: 29 April 2014
Place: Canberra

THE COURT ORDERS THAT:

The application be dismissed.

IN THE SUPREME COURT OF THE     )
)          No. ACTCA 42 of 2013
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 24 of 2012
  )          No. SCC 141 of 2012

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

GREGORY JASON MERRILEES
Appellant

V
THE QUEEN
Respondent

ORDER

Judge:  Refshauge J
Date:  29 April 2014
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

On 27 April 2010, Marko Zanatta was, after police officers followed a motor vehicle which they alleged he was driving, arrested and charged…

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 Merrilees v The Queen

Details

AGLC: Merrilees v The Queen [2014] ACTCA 10
Case: [2014] ACTCA 10
Decision Date: 29 April 2014

CaseChat Overview and Summary

Merrilees applied to the Supreme Court of the Australian Capital Territory for leave to appeal against a decision of the Registrar of the Court. The Registrar had granted Merrilees leave to appeal against his conviction out of time. Merrilees sought to have the Registrar's decision reviewed and to be heard de novo.

The central legal issue before Refshauge J was whether the Registrar, in granting leave to appeal out of time, had exercised that discretion appropriately. Specifically, the court had to consider whether there was a sufficient prospect of success on the substantive appeal against conviction to justify granting an extension of time.

Refshauge J reasoned that the Registrar is not an officer with statutory independence in the same way as a judge. Therefore, the court retained a supervisory role over the Registrar's exercise of discretion. Upon reviewing the material, Refshauge J found that the proposed grounds of appeal against conviction lacked sufficient merit or prospect of success. Consequently, the application for leave to appeal against the Registrar's decision was dismissed.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Merrilees v The Queen [2014] ACTCA 10

Most Recent Citation

Davison v Craig [2015] ACTSC 390

Cases citing this decision · 7 of 7 shown

McIver v Australian Capital Territory; Williams v Australian; Capital Territory
[2024] ACTSC 112

…018] ACTSC 19; 329 FLR 267 Lewis v Australian Capital Territory [2019] ACTCA 16 McIver v The King [2023] ACTCA 48; 20 ACTLR 303 Merrilees v The Queen [2014] ACTCA 10 Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 New So…
Will v The Queen
[2020] ACTCA 42 Para 1

…It was common ground that the present application comes before me as a hearing de novo: Merrilees v The Queen [2014] ACTCA 10 ( Merrilees ) [19] to [22]. In Merrilees, Refshauge J cited with approval the relevant principles governing an application such as the present set out in Parker v The Queen [2002] FCAFC 133…
Middleton v Director of Public Prosecutions
[2019] ACTCA 24 Para 1

…The parties accepted that the relevant principles to be applied were those summarised by Refshauge J in Merrilees v The Queen [2014] ACTCA 10 at [26] ( Merrilees ), applying the principles summarised in Parker v The Queen [2002] FCAFC 133 ( Parker ):…
Davison v Craig
[2015] ACTSC 390 Para 1

…As was noted by Refshauge J in Merrilees v R [2014] ACTCA 10, at [60]-[61] in a judge alone trial the reasoning process of coming to the conclusion can be scrutinised.…
Kelly v Director of Public Prosecutions (ACT)
[2015] ACTCA 55 Para 1

…dance with the special provisions set out in Sub-Div 5.4.7.2 of the Court Procedures Rules . I have described this procedure in Merrilees v The Queen [2014] ACTCA 10 at [8]-[14].…
Vojneski v The Queen
[2015] ACTCA 44 Para 1

…out of time from a conviction was considered by Refshauge J in The Queen v Meyboom (2012) 256 FLR 450 ( Meyboom ) and again in Merrilees v The Queen [2014] ACTCA 10 . His Honour relied on the approach of the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133 ( Parker ), as follows:…
Dennis Michael Nona v The Queen (No 2)
[2014] ACTCA 48 Para 1

…e, including to the Registrar and, if approved, to a judge. I have described what that provision means, and the value of it, in Merrilees v The Queen [2014] ACTCA 10.…

View all 7 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Orchard
[2013] NSWCCA 342 Para 1

…In R v Orchard [2013] NSWCCA 342 at [160]-[163], the Court noted three relevant matters:…
Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory
[2013] ACTSC 198 Para 1

…though the strict separation of powers doctrine may not apply in this Territory: Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198. It also seems to me to be consistent with the approach of the Federal Court, on appeal from the Supreme Court of the ACT, in Commonwealth v Pillifea…
R v Meyboom
[2012] ACTCA 48 Para 1

…I have set out in The Queen v Meyboom (2012) 256 FLR 450 ( Meyboom ) the approach that should be taken to the consideration of an application for leave to appeal out of time in these circumstances.…
Burrell v The Queen
[2008] HCA 34 Para 1

…In the first place, time limits are important in litigation to protect the important value of finality in litigation. See Burrell v The Queen (2008) 238 CLR 218 at 223; [15].…
Fox v Percy
[2003] HCA 22 Para 1

…idence of witnesses whose credibility is in issue and whom the court below has had the advantage of seeing and hearing. See, for example, Fox v Percy (2003) 214 CLR 118 at 125-6; [23], 127; [27]; 146-7; [90] and 165-6; [148].…
Parker v The Queen
[2002] FCAFC 133 Para 1

…Next, in Meyboom , I followed what had been said by the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133, which adopted the approach that had been established in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Jess v Scott (1986) 12 FCR 187 for applications to appeal out of tim…
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)
[1999] HCA 3 Para 1

…Despite the reservations about demeanour expressed by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 617-8, the position remains that appellate courts are reluctant to interfere with decisions based on factual findings which are based on the evidenc…
Fleming v The Queen
[1998] HCA 68 Para 1

…M v The Queen was, of course, a trial by jury whereas in the case here, the trial was by judge alone. The High Court, however, in Fleming v The Queen (1998) 197 CLR 250 considered that, generally, the same approach should be taken. Thus, it said at 262; [26]…
M v the Queen
[1994] HCA 63 Para 1

…Mr Doig, appropriately, referred to M v The Queen (1994) 181 CLR 487 where the High Court had to consider how a court should approach a challenge to the verdict of a jury that was unsafe or unsatisfactory. Mason CJ, Deane, Dawson and Toohey JJ said at 493 in a passage that has often been cited:…
Harris v Caladine
[1991] HCA 9 Para 1

…application to be made to the Court of Appeal is to be heard de novo. Such an approach is consistent with the principles set out in Harris v Caladine (1991) 172 CLR 84 at 94-5, even though the strict separation of powers doctrine may not apply in this Territory: Lewis v Chief Executive, Department of Justice and Com…
Jess v Scott
[1986] FCA 473 Para 1

…v The Queen [2002] FCAFC 133, which adopted the approach that had been established in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Jess v Scott (1986) 12 FCR 187 for applications to appeal out of time, even though these were civil cases. The matters that were said to require consideration in Hunter…
Hunter Valley Developments Pty Ltd v Cohen
[1984] FCA 186 Para 1

…had been said by the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133, which adopted the approach that had been established in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Jess v Scott (1986) 12 FCR 187 for applications to appeal out of time, even though these were civil cases. The matters that were said t…
Traut v Faustmann Bros Pty Ltd
[1983] FCA 137 Para 1

…I am conscious of the caution expressed by Lockhart J in Traut v Faustmann Bros Pty Ltd (1983) 77 FLR 98 at 99-100…
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd
[1976] HCA 62 Para 1

…tatutory provisions. Further, it is consistent with the general approach set out in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 621.…

Legislation cited in this decision · 4

Court Procedures Rules 2006 (ACT)
5506, 5508, 5509, 5510 4 mentions
Supreme Court Act 1933 (ACT)
370, 37J(1)(b), 68 4 mentions (from Para 1)
Criminal Appeal Act 1912 (NSW)
6(1) 2 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
33(1) 2 mentions (from Para 1)