Mullally v The Queen - [2002] WASCA 359

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MULLALLY -v- THE QUEEN [2002] WASCA 359

CORAM: PARKER J
HASLUCK J
OLSSON AUJ

HEARD: 5 DECEMBER 2002

DELIVERED : 20 DECEMBER 2002

FILE NO/S: CCA 227 of 1999

BETWEEN: PATRICK EDWARD MULLALLY
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Stealing by unlawfully appropriating trust funds to satisfy costs - Whether inadmissible unsigned file copy of letter should have been excluded in exercise of discretion - Effect of inappropriate admission of copy letter - Application of proviso to s 689(1) Criminal Code

Legislation:

Criminal Code, s 689(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B Fiannaca

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Doggett v The Queen (2001) 182 ALR 1
Mullally v The Queen [2001] WASCA 258

Case(s) also cited:

Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487

PARKER J: For the reasons published by Olsson AUJ I agree that this appeal should be dismissed.
HASLUCK J: I have had the advantage of reading the reasons for judgment of Olsson AUJ. I agree with those reasons and would dismiss the appeal. I have nothing to add.
OLSSON AUJ:

Introduction

The matter now before the Court has had a lengthy history.
On 21 October 1999 the 2 years' imprisonment with eligibility for parole. He was released on parole on 23 June 2000 and has now satisfied the whole of his sentence obligation.
The appellant filed a notice of appeal against his conviction on 4 November 1999. This contained numerous grounds. On or about 31 July 2000, only a few days before the date on which the appeal was listed for hearing, he filed a notice of abandonment of it. By virtue of the Criminal Practice Rules this produced the result that the appeal was deemed to have been dismissed.
On or about 12 February 2001 the appellant made application to the Court of Criminal Appeal for leave to withdraw his notice of abandonment. He also sought an extension of time within which to appeal. It was intimated that, at that stage, he desired to prosecute two only of the original 17 grounds of appeal.
For reasons published on 28 August 2001 (Mullally v The Queen [2001] WASCA 258), the Court of Criminal Appeal granted the appellant leave to withdraw his notice of abandonment. The original appeal now comes before that Court, as presently constituted, for hearing.

The charge and residual grounds of appeal

The indictment against the appellant alleged that, between 2 December 1992 and 31 December 1993 at Subiaco, he stole the sum of

$26,678.23 in money, the property of Boltrans Nominees Pty Ltd (receiver and manager appointed) trading as New England Freight Lines ("Boltrans"), being the amount of a general deficiency.

The essence of that charge was that, as…

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 Mullally v The Queen

Details

AGLC: Mullally v The Queen [2002] WASCA 359
Case: [2002] WASCA 359
Decision Date: 20 DECEMBER 2002

CaseChat Overview and Summary

The case of Mullally v The Queen involved an appeal against the conviction of the appellant, Mullally, for stealing by unlawfully appropriating trust funds to satisfy his own costs. The matter was heard in the High Court of Australia. The central issue before the court was whether an unsigned file copy of a letter, which was inadmissible due to its unsigned nature, should have been excluded from evidence under the discretion provided by section 689(1) of the Criminal Code. The court also had to consider the impact of the improper admission of this copy letter on the overall fairness of the trial and the applicability of the proviso to section 689(1).

The court examined the legal principles surrounding the admissibility of evidence and the discretionary powers of the trial judge under section 689(1). It was acknowledged that an unsigned file copy of a letter generally does not meet the requirements for admissibility due to the absence of proper authentication. The court then assessed whether the admission of such evidence, despite its inadmissibility, had a significant effect on the outcome of the trial. The court determined that the inappropriate admission of the copy letter could potentially lead to an unfair trial if it had a substantial influence on the jury's decision. In considering the proviso to section 689(1), the court found that the admission of the unsigned file copy did not meet the threshold for excluding the evidence under the proviso, as it did not cause or appear likely to cause a miscarriage of justice.

The High Court concluded that the admission of the unsigned file copy of the letter, while inappropriate, did not result in a miscarriage of justice. Consequently, the court upheld the conviction, dismissing the appeal. The court emphasized the importance of ensuring the proper authentication of documents before admitting them as evidence, while also acknowledging that not all instances of inadmissible evidence will necessarily lead to the exclusion of a conviction under the proviso to section 689(1). The final orders of the court were that the appeal be dismissed, and the conviction of the appellant be upheld.

Orders