Oates v The Queen

[2000] HCATrans 78

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B38 of 1999

B e t w e e n -

ANTHONY JOHN OATES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2000, AT 11.48 AM

Copyright in the High Court of Australia

McHUGH J:   This matter is to be dealt with on the papers.  There is to be no oral submission from either side.  The Court is in a position to give its judgment and I now do so.

The applicant seeks an extension of time in which to file an application for special leave to appeal against an order of the Court of Appeal of Queensland dismissing his appeal against a murder conviction.  The special leave question formulated in PART 1 of the application is that in dismissing his appeal, the Court of Appeal:

“erred in not admitting a vital constructive piece of evidence and confused same with another evidence hereinto referred to as Ex 30.”

It would appear clear that the Court of Appeal incorrectly believed that a handwritten statement of the applicant’s co-accused was admitted into evidence at the trial. 

In some circumstances, such a mistake might call for the grant of special leave to appeal on the ground that it affected the due administration of justice in the particular case.  However, for two reasons, this case does not call for the grant of special leave.  First, the version of events contained in the statement was already before the jury in the sworn evidence of the co‑accused.  Even if the handwritten document was admissible for the purpose which the applicant claims it was relevant, which we regard as a highly doubtful proposition, it could not have affected the result of the trial.  It is not a tenable view of the case that the jury, having disbelieved the sworn evidence of the co‑accused, would have been influenced by her self‑serving statement prepared out of court after she had already confessed to the police and that confession having been made some considerable time before the statement was prepared.

Second, the applicant claims that the document was fresh evidence within the meaning of the decision of this Court in Gallagher v The Queen 160 CLR 392. However, it would appear from comments made by the applicant when the case was before the Court of Appeal and from his written application in this Court that his counsel was aware of the statement but chose not to have it admitted. That being so, the evidence upon which he now seeks to rely could not be regarded as fresh evidence within the meaning of Gallagher’s Case.  The attitude that his counsel apparently took at the trial in relation to the statement would be a ground in itself for refusing an application for special leave.

The application for special leave raises no question of law of public importance.  Indeed, the applicant does not assert that the application raises any question of law.  Nor is it a case where the due administration of justice requires the grant of special leave to appeal.  The case against the applicant was a strong one, supported by cogent admissions to a number of people as well as a recorded and very detailed confession to the police. 

The application for special leave was filed well out of time.  In the circumstances, the appropriate order is to refuse the application for an extension of time on the ground that the application for special leave to appeal would have no prospect of success.  The application is, accordingly, dismissed.

AT 11.52 AM THE MATTER WAS CONCLUDED