R v McGrane - [2008] QCA 42

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGrane [2008] QCA 42

PARTIES:

R
v
McGRANE, Michael
(applicant)

FILE NO/S:

CA No 289 of 2007
CA No 1 of 2002
SC No 619 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Miscellaneous Application – Criminal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

5 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2008

JUDGES:

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

ORDER:

1. Application for an extension of time refused

2. Application to adduce further evidence refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant convicted of murder – where applicant applied for extension of time to appeal against conviction – where appeal to the Court of Appeal had previously been heard and decided in respondent's favour – whether extension of time should be granted – whether appeal was available if extension was granted

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL– where applicant wished to raise medical evidence he claimed was inconsistent with the prosecution case at trial – where evidence was available at trial and at subsequent appeal to Court of Appeal, but not raised – whether application to adduce evidence should be allowed

Elliott v The Queen (2007) 82 ALJR 82, followed
Grierson v The King (1938) 60 CLR 431, followed
R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, distinguished

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

THE PRESIDENT: After a lengthy trial, the applicant, Michael McGrane was convicted on 19 December 2001 of murdering Yuan Ling Chan between 24 January and 1 February 1997. His appeal against conviction to this Court was dismissed on 17 May 2002: see R v.McGrane [2002] QCA 173. He filed an application for special leave to appeal to the High Court of Australia on 13 June 2002 but abandoned that application on 21 November 2002. On 12 February 2007 he applied to this Court for an extension of time for leave to appeal and to adduce further evidence. He abandoned those applications on 11 April 2007. On 26 October 2007 he filed further applications for an extension of time to appeal and to adduce further evidence. It can be seen that his application for extension of time to appeal is many years late, and that he has already had a concluded appeal which was unsuccessful in this Court.

The grounds of his most recent application for an extension of time are as follows:

"(1) Fresh and new evidence has been discovered which contradicts the mode…

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 [2008] QCA 42
Case: [2008] QCA 42
Decision Date: 5 March 2008

CaseChat Overview and Summary

The case of R v McGrane concerned an appeal against a conviction for murder in Queensland. McGrane sought an extension of time to appeal against his conviction, which was denied. The case was previously heard and decided in the respondent's favour. McGrane also applied to introduce fresh medical evidence which he claimed was inconsistent with the prosecution case at trial. This evidence was available at the trial and at the subsequent appeal to the Court of Appeal, but was not raised. The court had to decide whether the application for an extension of time should be granted, and whether the appeal was available if the extension was granted. Furthermore, the court needed to determine if the application to adduce further evidence should be allowed.

The court considered the principles governing the grant or refusal of extensions of time for appeals. It noted that extensions are not usually granted as a matter of course, and that the court must consider the reasons for the delay and whether the delay has caused any prejudice to the respondent. The court also examined the general principles regarding the admission of fresh evidence in appeals. It held that fresh evidence should only be admitted if it is relevant, material and could have reasonably been adduced at the trial or earlier appeal.

The court found that McGrane had not provided sufficient reasons for the delay in lodging the appeal, nor had he shown that the delay had not caused any prejudice to the respondent. The court also held that the medical evidence was not relevant or material to the issues in the case, and that McGrane could have reasonably adduced it at the trial or earlier appeal. Accordingly, the application for an extension of time was refused and the application to adduce further evidence was also refused. The court dismissed the appeal and upheld the conviction.

The final orders of the court were that the application for an extension of time was refused and the application to adduce further evidence was also refused. The appeal was dismissed and the conviction was upheld. The court held that the principles governing the grant or refusal of extensions of time for appeals and the admission of fresh evidence in appeals had been correctly applied in this case. The delay in lodging the appeal was not justified and the fresh evidence was not relevant or material to the issues in the case.

Orders

Orders of the court

1. Application for an extension of time refused

2. Application to adduce further evidence 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 [2008] QCA 42
PARTIES:	R v McGRANE, Michael (applicant)
FILE NO/S:	CA No 289 of 2007 CA No 1 of 2002 SC No 619 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Miscellaneous Application – Criminal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	5 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2008
JUDGES:	McMurdo P, Fraser JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for an extension of time refused 2. Application to adduce further evidence refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant convicted of murder – where applicant applied for extension of time to appeal against conviction – where appeal to the Court of Appeal had previously been heard and decided in respondent's favour – whether extension of time should be granted – whether appeal was available if extension was granted APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL– where applicant wished to raise medical evidence he claimed was inconsistent with the prosecution case at trial – where evidence was available at trial and at subsequent appeal to Court of Appeal, but not raised – whether application to adduce evidence should be allowed Elliott v The Queen (2007) 82 ALJR 82, followed Grierson v The King (1938) 60 CLR 431, followed R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, distinguished
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