O'Grady v The Queen

[2014] HCA 38

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, BELL, GAGELER AND KEANE JJ

ANDREW O'GRADY  APPELLANT

AND

THE QUEEN  RESPONDENT

O'Grady v The Queen

[2014] HCA 38

9 October 2014

S114/2014

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 18 November 2013.

3.Remit the application dated 27 June 2013 to the Court of Criminal Appeal for determination.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with G A Bashir for the appellant (instructed by Legal Aid NSW)

J H Pickering SC with T L Smith for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

O'Grady v The Queen

Criminal law – Appeal – Application to extend time within which to apply for leave to appeal against sentence – Principles to be applied in determining whether extension of time should be granted – Whether applicant required to demonstrate that refusal of application would occasion substantial injustice – Relevance of principle of finality – Relevance of prospect of success should extension be granted – Whether extension of time should be granted.

Words and phrases – "Abdul test", "principle of finality", "substantial injustice".

Criminal Appeal Act 1912 (NSW), s 10(1)(b).
Criminal Appeal Rules (NSW), rr 3A, 3B.

1. FRENCH CJ, HAYNE, BELL, GAGELER AND KEANE JJ.   This appeal was heard together with the appeal of Phillip Charles Kentwell[1].  It raises the same issue as to the correctness of the principles applied by the Court of Criminal Appeal of the Supreme Court of New South Wales in the determination of applications to extend the time in which to apply for leave to appeal against a sentence on the ground of "Muldrock error"[2].  These reasons are to be read with the reasons in Kentwell.

   [1]Kentwell v The Queen [2014] HCA 37.

   [2]Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

2. The appellant was convicted following a trial in the District Court of New South Wales (Murrell DCJ and a jury) of an offence of specially aggravated breaking and entering[3].  The offence is subject to a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years' imprisonment[4].  On 17 September 2010, Murrell DCJ sentenced the appellant to a non-parole period of five years and six months' imprisonment with a balance of term of three years and six months.  The appellant will be eligible for release on parole on 22 November 2015.

   [3]Crimes Act 1900 (NSW), s 112(3).

   [4]Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A, Table, Item No 13.

3. Murrell DCJ (as her Honour then was) found that the offence was in the middle of the range of objective seriousness for offences of this description.  Her Honour said that the sentence…