SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v MCRAE
[2013] SASCFC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
5 September 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - TELEPHONE CALLS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Upon trial by jury, the applicant was convicted of two counts of aggravated serious criminal trespass in a place of residence, one count of aggravated causing harm with intent to cause harm, two counts of theft and one count of damaging property. He was sentenced to imprisonment for eight years, two months and nine days (taking into account time already served and a period of unexpired parole) with a non-parole period of four years.
The prosecution case was that the applicant broke into two residential houses with two other men. One Saunders, pleaded guilty to the charges. The identity of the third man was never ascertained. The case against the applicant was wholly circumstantial. DNA matching his DNA was found on a number of items in Saunders' car which was found abandoned near the second house after having been involved in an accident. Such DNA was also found on a cigarette butt some 15-20 metres from the car, the prosecution case being that the applicant had smoked a cigarette at some distance from the car. A large number of calls were made from a mobile phone associated with the applicant to various phone numbers, including to numbers associated with his then girlfriend and his identical twin, Adam McRae. The timing and geographical origins of the earlier calls were consistent with a person travelling towards the area of the offences. A later spate of calls made from the area of the second offence was consistent with the getaway vehcile having been rendered undrivable and its occupants calling for assistance. The applicant asserted that the prosecution had failed to negative the hypothesis that the applicant had left his mobile phone in Saunders' car; that the relevant calls were not made by him; and that his twin brother Adam McRae had been among the men in the car and was responsible for the relevant deposits of DNA. As part of its evidence, the prosecution relied on an unannounced phone call later made by a police officer to the phone number associated with Adam McRae, during which the recipient identified himself as "Adam McRae".
The applicant initially appealed against his convictions but his solicitor later filed a Notice of Abandonment of Appeal. The applicant subsequently sought…
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- AGLC
- R v McRae [2013] SASCFC 89
- Case
- [2013] SASCFC 89
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether it possessed the power to set aside a notice of abandonment of an appeal, and if so, under what circumstances this power should be exercised. This involved considering the relevant rules of court, specifically Rule 70 of the Queensland Criminal Practice Rules, which grants the court a broader power to set aside an abandonment than previously existed. The Court also had to determine the considerations relevant to such an application, including the explanation for the abandonment, any delay in seeking to set it aside, and the prospects of success on the merits of the appeal.
The Court reasoned that Rule 70 of the Queensland Criminal Practice Rules conferred a broader power to set aside an abandonment of an appeal than previously existed, requiring the court to consider whether it was "necessary in the interests of justice". The Court noted that while detailed affidavits and cross-examination would typically be required to establish the circumstances of abandonment, the present case presented unusual factors. These included the Director of Public Prosecutions not opposing the application and submitting that the appeal should be considered on its merits, the provision of full documentation by the Legal Services Commission, and the existence of a separate, valid application for permission to appeal against sentence. The Court also referred to English and South Australian authorities which indicated that the power to withdraw a notice of abandonment would only be exercised in special circumstances justifying a departure from ordinary procedure.
Given the unusual circumstances, including the Director's stance and the readiness of the applicant's legal representatives to proceed, the Court considered it necessary in the interests of justice to set aside the notice of abandonment and reinstate the appeal against conviction. The Court also noted that the applicant had a separate, valid application for permission to appeal against sentence that required consideration.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J, STANLEY J, NICHOLSON J
It can be seen that the only difference between the South Australian and Queensland provisions is that the Queensland rule explicitly states that the power to set aside the abandonment is to be exercised where “the court considers it necessary in the interests of justice”. In R v Basacar, Cullinane J (with whom Frazer JA and Jones J agreed) stated:[28][9]The courts permitted the withdrawal of a notice of abandonment only in very limited circumstances which are not relevant here. With the introduction of r 70 the court has a broader power to set aside an abandonment of an appeal and to reinstate the appeal.[10]Although the applicant did not make such an application in those terms before us, it seems to me consistent with the above authorities necessary for him if he is to challenge the convictions to obtain such an order and the matter falls to be considered by reference to the considerations relevant to such an application.[11]The considerations relevant to such an application are more extensive than those relevant to an application for an extension of time within which to appeal although considerations relevant to the latter will also be relevant to the former.[12]Rule 70 was considered by the Court of Appeal in R v Marriner [2007] 1 Qd R 179.[13]As McPherson JA pointed out at pp 183 and 184 consideration of the circumstances in which the appeal was abandoned in the first place is necessary. The explanation for any delay between the abandonment and the application for leave to set it aside will be relevant as will a consideration of the prospects of success. Ultimately of course, the question is whether the setting aside of the abandonment and the reinstatement of the appeal are necessary “in the interests of justice”.[28] [2008] QCA 285.Consideration of the application generally The explanation of the applicant for the abandonment of the conviction appeal was that he believed that he could only present an appeal through a lawyer; that he could not afford a lawyer; that prior to the very recent provision of assistance he had been refused assistance by the Legal Services Commission; and that his previous lawyer had “suggested that I abandon it for now because – he said that we haven’t gone too far and we can appeal later”.[29][29] T3. Usually detailed affidavits would be required concerning the statements of the applicant, with cross-examination likely, and particularly so concerning the last assertion above. However, there were a number of unusual circumstances in the present case. First, the Director did not wish to contest the accuracy of the applicant’s statements surrounding the circumstances under which the Notice of Abandonment was filed and positively submitted that the appeal should be considered upon its merits. The Director had long ago filed its outline of argument on the merits in relation to the conviction appeal, had since filed further full documentation and was ready to present full argument on both conviction and sentence forthwith. Second, the Legal Services Commission had also provided full documentation and Senior Counsel was ready to proceed forthwith. Finally, quite apart from the matter of conviction, the applicant had a valid application for permission to appeal against sentence on foot (with an implied application for an extension of time) which needed to be considered by the Court in any event.