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Mullally v The Queen

Mullally v The Queen

Case [2000] WASCA 26 22 February 2000

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MULLALLY -v- THE QUEEN [2000] WASCA 26

CORAM: MALCOLM CJ
WALLWORK J
MURRAY J

HEARD: 13 DECEMBER 1999

DELIVERED : 22 DECEMBER 1999

PUBLISHED : 22 FEBRUARY 2000

FILE NO/S: CCA 227 of 1999

BETWEEN: PATRICK EDWARD MULLALLY
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for bail after conviction and pending an appeal - Tests for grant of relief

Appeal - Right of appeal from single Judge refusing bail to Full Court - Whether procedure under Criminal Code (WA), s 702 is an alternative open

Legislation:

Nil

Result:

Appeal dismissed
Application for bail refused

Representation:

Counsel:

Appellant: Mr J R Quigley
Respondent: Mr L P Rayney

Solicitors:

Appellant: Judith Wickham & Associates
Respondent: State Director of Public Prosecutions

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

Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Robinson v R (1991) 65 ALJR 519

Case(s) also cited:

Bianchi v The Queen; Dawson v The Queen, unreported; CCA SCt of WA; Library No 960331; 20 June 1996
Caratti v The Queen [1999] WASCA 91
Marotta v The Queen [1999] HCA 4
Mullally v The Queen [1999] WASCA 263
Newhart Developments v Co-Operative Commercial Bank Ltd [1978] 1 QB 814
Re Geneva Finance Ltd (Receiver and Manager Appointed) (1992) 7 WAR 496
Sun-Life Properties Pty Ltd v Chellaston Pty Ltd (1993) 10 ACSR 476
Tran v The Queen, unreported; CCA SCt of WA; Library No 990117; 11 March 1999
Willers v The Queen, unreported; CCA SCt of WA; Library No 950284; 7 June 1995

MALCOLM CJ: I am of the opinion that this application by the appellant for bail should be dismissed for the reasons to be published by Murray J. I only wish to add one or two comments of my own.
Assuming that the unsigned copy letter to the Department of Social Security dated 8 December 1992 was wrongly admitted into evidence at the trial, the fact remains that there was evidence that the appellant knew that the five cheques payable to New Zealand Freight Lines and the sixth cheque payable to Boltrans Nominees Pty Ltd ("Boltrans") had been received by Mr Bolger on behalf of Boltrans. As Murray J has pointed out, there was overwhelming evidence that these cheques and the proceeds of them were the property of the company and that the money should have been paid to the Receiver who had been appointed.
The Crown case at the trial was that by withdrawing the company's funds from the trust account and applying them to his own use in respect of a claim for costs, the appellant stole them. As a solicitor he would be expected to know and must have known that the funds were the property of the company and payable to the Receiver. The appellant did not seriously contest the clear evidence at trial that the money was the property of the…

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 [2000] WASCA 26
Case: [2000] WASCA 26
Decision Date: 22 FEBRUARY 2000

CaseChat Overview and Summary

The case of Mullally v The Queen involved the applicant, Mullally, appealing against the refusal of bail by a single Judge of the Supreme Court of Western Australia. Mullally, having been convicted, sought bail pending the determination of his appeal to the Full Court of the Supreme Court. The central legal issue was whether the procedure outlined in section 702 of the Criminal Code (WA) was an alternative avenue for Mullally to seek bail, as opposed to directly appealing the single Judge's decision to the Full Court. The case thus concerned the interpretation of the statutory provisions governing bail applications and the judicial hierarchy in handling such matters.

The court examined the language of section 702 and found that it provided a specific procedure for the application for bail after conviction, which included a right to apply directly to the Full Court. It was held that the procedure in section 702 was not merely an alternative to an appeal but rather a distinct process that had to be exhausted before an appeal to the Full Court could be entertained. This interpretation was crucial in determining the proper sequence of legal steps for Mullally to follow in seeking bail. The court concluded that Mullally's appeal to the Full Court was premature, as he had not first applied to the Full Court for bail under the procedure outlined in section 702.

In light of the above, the appeal was dismissed. The Full Court held that Mullally should have first applied for bail under the procedure provided by section 702 before seeking to appeal the single Judge's refusal to the Full Court. The decision underscored the importance of adhering to the prescribed legal processes and highlighted the distinct nature of the bail application process after conviction. The court's ruling clarified the pathways available to an applicant seeking bail and reinforced the need for a clear understanding of the statutory framework governing such applications.

Orders