R v McGinley

[1994] HCATrans 299

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P31 of 1993

B e t w e e n -

THE QUEEN

Applicant

and

MATTHEW JOHN McGINLEY (also

known as MIKAYLA JAY MCGINLEY

Respondent

Application for special leave
to appeal

BRENNAN J GAUDRON J McHUGH J

McGinley 1 22/4/94

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 1994, AT 11.11 AM

Copyright in the High Court of Australia

MR J.R. McKECHNIE, QC: If Your Honours please, I appear

with my learned friend, MS Z.A. BOYATZIS, I

represent the Crown. (instructed by the Director of

Public Prosecutions (Western Australia))

MR G.P. MILLER, QC: If Your Honours please, I appear with

my learned friend, MR H.C. QUAIL, for the

respondent. (instructed by Marcus Woodgush &

Associates)

BRENNAN J: Yes, Mr McKechnie.

MR McKECHNIE:  Your Honours, I do not propose to restate the

argument which we have put out in our written

outlines. We are well aware of the principles that

govern the application of special leave in respect

of criminal matters and in respect of appeals by

the Crown, especially where what is involved is the

restoration of a verdict of acquittal from a

conviction for wilful murder.

In our respectful submission, Your Honours,

the essential fact that the jury had to determine

was whether the Crown had proved that death

occurred by drowning. What the Court of

Criminal Appeal has done, in our respectful submission, is to take the appropriate test under

section 689 of the Criminal Code that is often

expressed as an unsafe and unsatisfactory verdict -

in section 679 it is a verdict that cannot be

supported having regard to the evidence - and have,

in the guise of application of that test, in fact

put themselves in the role of the jury and have

usurped the role of the jury.

It was never the Crown case that death could

be proved alone, or cause of death could be proved

alone, by the medical evidence. The Crown put

forward a variety of evidence and so if the Court

of Criminal Appeal decision is left uncorrected,

one has the unusual situation where the respondent

had said to a number of persons that he had drowned

the deceased, the evidence in the bathroom was

consistent with that and the medical evidence did

not exclude drowning.

GAUDRON J: But what is the question of principle which

arises out of that?

MR McKECHNIE:  The question of principle, Your Honour, is

that, if left uncorrected for the future, the

Court of Criminal Appeal may well embark on a

similar exercise and simply substitute for the

verdict of the triers of fact their own opinion,

and what we say ought to agitate this Court is the

need to correct the approach of the

McGinley 2 22/4/94

Court of Criminal Appeal for future cases in this

case. Now I recognize, of course, that this case

is in a broad sense a factual resolution, and I

recognize the authorities in relation to that, but

beyond that, it is the approach of the court which,

in our respectful submission, requires attention

and justifies the grant of special leave. That is

the brief statement of our submissions on the

special leave point, Your Honours, as set out in

our argument.

BRENNAN J:  And when you say that the Court of

Criminal Appeal may in the future decide to take

upon itself a function which the Act does not

entrust to it, there is no real reason to think

that the Court of Criminal Appeal would not ask

itself the question in any future case, "Is the

evidence sufficient to support the conviction?" Is

that not the question they asked themselves in this

case - perhaps getting the answer wrong, but asking

the right question.

MR McKECHNIE:  They got the answer, in our respectful

submission, so wrong that they do have trouble with

it, yes.

BRENNAN J:  I rather suspected that was the real ground of

your application, Mr McKechnie.

MR McKECHNIE:  I am not denying that it has considerable

force and I recognize the weight of the authorities

against us. What we say lifts it beyond merely

correcting of an error is the possible effect that

it will have in the future if left uncorrected.

BRENNAN J: Yes.

MR McKECHNIE: If Your Honours please, those are our

submissions.

BRENNAN J: Yes. We need not trouble you, Mr Miller. This is a Crown application for special

leave to appeal which turns solely on an assessment

of the sufficiency of evidence to support the

respondent's conviction for wilful murder. The

case does not present for decision a question of

principle which justifies the grant of special

leave. Accordingly, special leave is refused.

AT 11.16 AM THE MATTER WAS ADJOURNED SINE DIE

McGinley 22/4/94