R v Fegan

[1994] QCA 408

[1994] QCA 408

COURT OF APPEAL

McPHERSON JA

CA No 289 of 1994
THE QUEEN
v.

EDWARD PIRIE FEGAN

BRISBANE
..DATE 24/08/94
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HIS HONOUR: There are before me two notices of motion. One
is a notice of appeal dated 12 July 1994 by the appellant,
Edward Pirie Fegan, in respect of a conviction that was
entered against him in the Magistrates Court at Longreach on 3
December 1990. The other notice of motion is a notice of an
application for extension of time within which to appeal.

Without going in detail to the sequence of events that has occurred, it is enough to say that after the conviction in this case, the applicant, Mr Fegan, appealed to the Court of Criminal Appeal, as it then was. His appeal was heard and in due course it was dismissed on 27 August 1991 by a Court comprising Mr Justice Ryan, Mr Justice de Jersey and Mr Justice Mackenzie. The notice of motion by way of appeal to which I have referred appears on the face of it to be an attempt to rerun or rehearse that appeal. Such a course is of course not possible and the Registrar has referred the matter to this Court. I take the view that that notice of appeal is incompetent and accordingly I will order that it be struck out.

That leaves in being the other notice of motion which is an
application, as I have said, for an extension of time within
which to appeal. The basis of it, as is disclosed by the
notice itself, is that there is fresh evidence which
constitutes a basis for appealing again. It may be possible
for the applicant to come again to this Court with fresh
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evidence that was not available on any previous occasion in
order to obtain a new trial, which is his wish in this case.

The evidence would, of course, have to satisfy the ordinary tests to which such evidence must conform in cases like this.

It must, in other words, be cogent and material in the sense that it is likely to have affected the result of the original trial. It must not have been available at the time of the trial and it must be identified in such a way as to enable the Court to see that it is evidence which is both fresh and cogent in the senses I have mentioned.

The usual practice is to provide the evidence in affidavit form; that is to say, in the form of affidavits from the witnesses who will be called at a future trial, if there is one, and to provide copies of those affidavits to the Crown. That ought all to be done before the appeal returns to this Court. Then, if the case is a proper one for it, there may be affidavits coming from the Crown side contradicting that evidence and there may be cross-examination of the witnesses before the Court of Appeal.

We are at present a very long way from that stage, and if Mr
Fegan intends to persist with his application he will need to
do all those things before the matter can come before this

Court for a hearing to determine whether the fresh evidence is such as to enable him to succeed on this further appeal with a view to obtaining a new trial of the complaint against him.

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What I will do, in those circumstances is, as I have explained
to Mr Fegan, to adjourn the application for an extension of
time to appeal against conviction and to adjourn it to a date
to be fixed.
I think, as I have explained to you already, Mr Fegan, if you
do not go on with it you will find the Registrar will be
making inquiries as to what you propose to do and eventually
if you do nothing more no doubt the application will be struck
out.

APPLICANT: Would there be any time limit to that? Any idea on what time limit it may be?

McPHERSON JA: I would think you will have to discuss that with the Registrar. I am quite sure he is understanding in the sense that if you are busy with shearing he will not insist that you produce the evidence at that time. And I am quite sure the Crown, which has enough others things to entertain itself with in the meantime, will not hurry you through your shearing in order to get the affidavits in this case.
APPLICANT: Your Honour, is it usual to be provided with a written copy of what you have just said or not?
McPHERSON JA: I do not know, but-----
APPLICANT: That is the normal way of doing things or not?
McPHERSON JA: I will make sure you get a copy of this if you wish to have one.
APPLICANT: It is a lot to have to remember, yes, Your Honour.
McPHERSON JA: If I say that, I mean just the reasons I have given, not all the talk that went on between us.
APPLICANT: No, I appreciate that, Your Honour.
McPHERSON JA: Thanks, Mr Fegan. With luck and good sense, I think, you and I will not see each other again, at least not in this Court.

APPLICANT: Your Honour, I just would like to make one point, that I believe that my case is a prime candidate for a case for the mediation of justice unit that has been talked about for so long and never ever come about. I think if you----- 240894 D.1 T 21/NA M/T COA94/251

McPHERSON JA: I do not believe all that stuff. That is all politicians' talk. Believe me, at the Bar when you are a barrister as I was you lose about 50 per cent of the cases. The problem with it is you do not always lose the ones you think you should lose, and there are not too many of those because you think you should win most of them. And you quite often lose the ones you think you ought to win. But there is not much you can do about it. Remediation of justice does not help, and it never will.

APPLICANT: I have dreamed this case, I have slept it, I have ate it for the last three and a half years and I am extremely disappointed. I, as I said before, I am not a wealthy man, I am not a gambler, but I would be prepared to gamble that if I was able to get the retrial that I would win it, but the
problem is getting it.
McPHERSON JA: That may be so. I would not be confident about it simply because it is all chancey, that is the trouble.
APPLICANT: It is, I realise that.
McPHERSON JA: And it cannot help being chancey, but I think that you should stop eating yourself away with it and try to look at the rest of your life free of it.
APPLICANT: Your Honour, it is very easy to say, but before this came up I was then aged about 57, 58 years of age. I have never had any convictions of any kind in my life and I think in today's society with so many pressures, that is quite an achievement and I am quite proud of it. And now, to be stricken with this at this age of life, as I said before, Your Honour, it hurts.
McPHERSON JA: I can understand that.
APPLICANT: And when I contacted the Criminal Justice Commission, the senior investigator there told me precisely what you told me. He said there is nothing more you can do about it, just go on living your life as if it never happened.

Now that is a very glib statement to make, but in a town like

Longreach, a small town like Longreach where men are men and women appreciate it, a charge of this nature is a very, very embarrassing charge.
McPHERSON JA: I certainly understand that.
APPLICANT: I am sure you would understand that I have suffered a lot as a result.
McPHERSON JA: I can understand that.

APPLICANT: The 7.30 Report was only just another knife in the back and if I could get a retrial, there would possibly be some defamation action that could flow on as a result of that 240894 D.1 T 21/NA M/T COA94/251

7.30 Report. So there is a lot of other things attached to it

apart from just this.

McPHERSON JA: I can understand everything you say, Mr Fegan.
It must be very hard if as you believe you are innocent. On
the other hand, you have reached the end of the line I would
say legally and judicially and there are not any other lines.

These other people do not have power over these things, the politicians and the CJC and things like that. They have got no authority over this and they essentially will pass you back to us so far as they can. I think that you probably have to face the burden that has been put upon you and see if you can make your life feel better even though this tragedy has fallen on you, and that is about all I can say. I am not here to give advice so I have been pretty free with it this afternoon.

APPLICANT: It is a strange system of justice we have, sir. A strange system of justice.
McPHERSON JA: It is human, that is why it is strange. I think that is all I can do for you. Anything else, Mr Clark?
MR CLARK: No, I have nothing more.

McPHERSON JA: All right. We will adjourn now. Thank you very much.

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