R v McGrane - [2012] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGrane [2012] QCA 29

PARTIES:

R
v
McGRANE, Michael
(applicant)

FILE NO/S:

CA No 287 of 2011
DC No 1624 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2012; 3 February 2012

JUDGES:

Margaret McMurdo P and Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for an extension of time refused.

2. Application for the production of a document, exhibit or other thing refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where appeal brought eight years out of time – where sentences already served in full – where delay explained by new evidence which applicant claimed only became available six months ago and which he sought leave to adduce – whether the proposed appeal has prospects of success – whether the application for extension of time should be granted

CRIMINAL LAW – EVIDENCE – MISCELLANEOUS MATTERS – APPLICATION FOR LEAVE TO ADDUCE EVIDENCE – where applicant sought an order for the production of a document, exhibit or other thing – whether the material would assist the proposed case – whether the application should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAISNT CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES – where applicant pleaded guilty to several sexual offences – where applicant argued that plea was induced by threats by the prosecution – where alleged threats were to introduce evidence from related murder trial – where applicant argued further that he pleaded guilty on advice from his legal representatives – where applicant believed that plea would not be accepted because of psychiatric condition or because facts open to interpretation of innocence – whether conviction should be set aside notwithstanding free and voluntary guilty plea

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed
R v Baker [2011] QCA 104, followed
R v Bell[2011] QCA 101, considered
R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, considered
R v DAQ [2008] QCA 75, considered
R v Forde [1923] 2 KB 400, followed
R v GV [2006] QCA 394, distinguished
R v Lewis[2006] QCA 121, considered
R v McBride [2011] QCA 25, considered
R v McGrane[2002] QCA 173, considered
R v McGrane [2008] QCA 42, considered
R v Mundy[2011] QCA 7, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: This application for an extension of time…

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 R v McGrane

Details

AGLC: R v McGrane [2012] QCA 29
Case: [2012] QCA 29
Decision Date: 28 February 2012

CaseChat Overview and Summary

In the case of R v McGrane, the applicant sought to appeal against his conviction and sentence for several sexual offences. The application was brought eight years after the sentences had been served. McGrane argued that the delay in lodging the appeal was due to newly discovered evidence, which he claimed became available only six months prior to the application and sought leave to adduce. The court was required to determine whether the appeal had prospects of success and whether the application for an extension of time should be granted. Additionally, McGrane sought leave to adduce further evidence through an application for the production of a document, exhibit, or other thing.

The legal issues before the court involved assessing the merits of the appeal against the conviction on the basis of the applicant’s contention that his guilty plea was induced by threats from the prosecution, and that his legal representatives had advised him to plead guilty on the basis of his psychiatric condition and the open interpretation of the facts. The court had to consider whether the plea was free, voluntary, and informed, and whether the alleged threats and advice rendered the plea invalid.

In considering these issues, the court examined the evidence and submissions provided by McGrane. It found that the delay in lodging the appeal was not sufficiently justified, and the newly discovered evidence did not warrant an extension of time. Furthermore, the court determined that the proposed evidence would not assist the appeal and declined the application for the production of a document, exhibit, or other thing. Consequently, the application for an extension of time was refused, and the application for leave to adduce further evidence was also denied.

The court concluded that McGrane’s conviction should stand as the plea was found to be free, voluntary, and informed, notwithstanding the applicant’s claims regarding the threats and legal advice. No further orders were made beyond the refusals of the extension of time and the production of additional evidence.

Orders

Orders of the court

1. Application for an extension of time refused.

2. Application for the production of a document, exhibit or other thing refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McGrane [2012] QCA 29
PARTIES:	R v McGRANE, Michael (applicant)
FILE NO/S:	CA No 287 of 2011 DC No 1624 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2012; 3 February 2012
JUDGES:	Margaret McMurdo P and Chesterman JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for an extension of time refused. 2. Application for the production of a document, exhibit or other thing refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where appeal brought eight years out of time – where sentences already served in full – where delay explained by new evidence which applicant claimed only became available six months ago and which he sought leave to adduce – whether the proposed appeal has prospects of success – whether the application for extension of time should be granted CRIMINAL LAW – EVIDENCE – MISCELLANEOUS MATTERS – APPLICATION FOR LEAVE TO ADDUCE EVIDENCE – where applicant sought an order for the production of a document, exhibit or other thing – whether the material would assist the proposed case – whether the application should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAISNT CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES – where applicant pleaded guilty to several sexual offences – where applicant argued that plea was induced by threats by the prosecution – where alleged threats were to introduce evidence from related murder trial – where applicant argued further that he pleaded guilty on advice from his legal representatives – where applicant believed that plea would not be accepted because of psychiatric condition or because facts open to interpretation of innocence – whether conviction should be set aside notwithstanding free and voluntary guilty plea Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed R v Baker [2011] QCA 104, followed R v Bell[2011] QCA 101, considered R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, considered R v DAQ [2008] QCA 75, considered R v Forde [1923] 2 KB 400, followed R v GV [2006] QCA 394, distinguished R v Lewis[2006] QCA 121, considered R v McBride [2011] QCA 25, considered R v McGrane[2002] QCA 173, considered R v McGrane [2008] QCA 42, considered R v Mundy[2011] QCA 7, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed
COUNSEL:	The applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent