JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: MULLALLY -v- THE QUEEN [2001] WASCA 258
CORAM: KENNEDY J
WALLWORK J
OWEN J
HEARD: 21 MAY 2001
DELIVERED : 28 AUGUST 2001
FILE NO/S: CCA 257 of 2000
BETWEEN: PATRICK EDWARD MULLALLY
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Application for leave to appeal against conviction - Notice of abandonment filed - Subsequent application seeking leave to withdraw notice of abandonment - Whether notice a nullity - No cross-examination on applicant's affidavit - Leave to withdraw notice granted
Legislation:
Nil
Result:
Application allowed
Leave to withdraw notice of abandonment granted
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr R E Cock QC
Solicitors:
Applicant: In person
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bridges v The Queen (1998) 20 WAR 59
Hastie v R [1981] WAR 365
Kruse v Johnson [1898] 2 QB 91
R v Gardiner [1970] VR 278
R v Green [1988] 1 Qd R 408
R v Medway [1976] QB 779
Shanahan v Scott (1957) 96 CLR 245
Turan v The Queen (1989) 2 WAR 140
Case(s) also cited:
Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR 77
Broadcasting Co Australia Pty Ltd v The Commonwealth (1935) 52 CLR 52
Carbines v Powell (1925) 36 CLR 88
Coco v The Queen (1994) 179 CLR 427
Gibson v Mitchell (1928) 41 CLR 275
Grech v Bird (1936) 56 CLR 228
Grierson v The King (1938) 60 CLR 431
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402
R v Bell (1987) 8 NSWLR 311
R v Johnson (1992) 57 A Crim R 290
R v La Rosa (1999) 105 A Crim R 362
R v Morey (1993) 65 A Crim R 145
R v Shannon v R (1982) 32 SASR 5
R v Stone (1998) 42 A Crim R 189
R v Tabe [1983] 2 Qd R 60
R v Zakarian [1971] VR 455
Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629
KENNEDY J: On 20 October 1999, the applicant was convicted, after a trial by jury in the District Court, of one count of stealing. He was found to have stolen a sum in excess of $26,000 by transferring it from his trust account to his personal account in satisfaction of legal costs. He was sentenced to a term of imprisonment of 2 years, with eligibility for parole. He was released on parole on 23 June 2000.
On 4 November 1999, the applicant filed a notice of appeal against his conviction. The notice contained 17 grounds. Nearly nine months later, the applicant filed a notice of abandonment of his appeal in the form set out in the Schedule to the Criminal Practice Rules 1914, by which he gave notice that he did not intend further to prosecute his…
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- AGLC
- Mullally v The Queen [2001] WASCA 258
- Case
- [2001] WASCA 258
- Decision Date
CaseChat Overview and Summary
The applicant argued that the rule under which the notice of abandonment was filed was ultra vires the statute and was so unreasonable that no reasonable authority would make it. The court rejected these arguments, holding that the rule was within the power of the court to make and was not unreasonable. It was noted that the rule provided a convenient method for an appellant to bring an appeal to an end. The court also found that the notice of abandonment would be regarded as a nullity if it was not the deliberate and informed decision of the applicant, which the applicant claimed was not the case. The inconsistencies in the applicant's explanation for filing the notice were noted, but the applicant's affidavit indicated that he did not understand the full implications of the notice at the time of signing.
The court granted the applicant's application and permitted him to withdraw the notice of abandonment, allowing the appeal to proceed. Wallwork J and Owen J agreed with Kennedy J's reasoning and the proposed orders. The court found that the rule was valid and that the applicant's notice of abandonment was not a deliberate and informed decision, thus rendering it a nullity.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: WALLWORK J
The applicant then claimed that the rule is unreasonable, basing his argument on the leading cases of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Kruse v Johnson [1898] 2 QB 91. There is, in my view, no substance in this argument. It is not a Draconian provision, as the applicant claimed, and I am unable to accept that the rule is so unreasonable that no reasonable authority would make it. As already indicated, it provides a convenient method for an appellant/applicant to bring an appeal, or an application for leave to appeal, to an end. I would allow the applicant's application and grant him leave to withdraw his notice of abandonment of his appeal. WALLWORK J: I agree with the reasons for judgment of Kennedy J and with the orders proposed by his Honour. OWEN J: I have read the reasons that Kennedy J intends to publish. I agree with his Honour's reasons and with the conclusion that the application be allowed and that the applicant be permitted to withdraw the notice of abandonment. I should explain, in a very summary way, why I have reached that view. The argument that OIX r 13 is ultra vires is untenable. At the relevant time it provided:"An appellant … may abandon his appeal by giving notice of abandonment thereof in [the prescribed form] and upon such notice being given an appeal shall be deemed to have been dismissed by the Court of Criminal Appeal." The applicant submitted that the rule was ultra vires. The rule made under s 747 of the Criminal Code which empowers the Judges of this Court to make rules that are matters of practice and procedure and which are (among other things) "necessary or convenient … for the efficient conduct of any proceedings [under Chapter LXIX of the Criminal Code]". In my view the rule fits within that category and is within power. The alternative argument that the rule is so unreasonable that no reasonable decision‑maker could have made it is even less attractive. Bridges v The Queen (1998) 20 WAR 59 confirmed that a notice of abandonment, once filed, is effective to put an end to the appeal but the Court may give leave to withdraw a notice that is a nullity. It also confirmed that a notice will be regarded as a nullity if it is not the deliberate and informed decision of the applicant. Put in a slightly different way, it will be a nullity if the mind of the applicant did not go with his or her act of abandonment. As Kennedy J has pointed out, there are some inconsistencies or uncertainties in the explanation proffered to the Court by the applicant for his decision to file the notice. However, in his affidavit sworn 12 February 2001 the applicant says:"8.…The only matter on my mind at the time when I signed the notice was that the appeal had to be taken out of the list of cases for hearing.9.If I had appreciated or understood that the notice was a full dismissal of the case on the merits and that it barred all future action on the appeal I would not have signed it."