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Stevens v McCallum

Stevens v McCallum

Case [2006] ACTCA 13 30 June 2006

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HUMAN RIGHTS ACT

CORNELIUS STEVENS v EMILY McCALLUM
[2006] ACTCA 13 (30 June 2006)

APPEAL - conviction - unsafe and unsatisfactory - incompetence of counsel - loss of chance of acquittal - miscarriage of justice.
APPEAL - sentence - assault - application of De Simoni principles.
APPEAL - sentence - guilty plea to breach of protection order - breach of recognisance - failure to consider facts admitted or proved in respect of prior offence.

Crimes Act 1900 (ACT), ss26, 360, 404
Protection Orders Act 2001 (ACT), s34
Evidence Act 1995 (Cth), ss32, 38, 43, 44, 60, 66, 108, 122, 135, 136, 137, 165
Crimes (Sentencing Procedure) Act 1999 (NSW), ss98, 99

European Convention on Human Rights, Art 6
International Covenant on Civil and Political Rights, Art 14.1

Human Rights Act 2004 (ACT), s21

R v De Simoni (1981) 147 CLR 383
TKWG v The Queen (2002) 212 CLR 124
R v Birks (1990) 19 NSWLR 677
R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211
R v TJF [2001] NSWCCA 127; 120 A Crim R 209
R v Hunter and Sara [1999] NSWCCA 5; 105 A Crim R 223
R v Wakim [1998] 2 VR 46
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Strickland v Washington (1984) 466 US 668
Dietrich v The Queen (1992) 177 CLR 292
D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; 214 ALR 92
Tuckiar v The Queen (1934) 52 CLR 335
R v Peeris [1988] EWCA Crim 597
R v YL [2004] ACTSC 115
Skaramuca v Craft [2005] ACTSC 61
SI bhnf CC v KS bhnf IS [2005] ACTSC 125
R v Joanisse (1995) 102 CCC (3^rd) 35
Sungsuwan v R [2005] NZSC 57
Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 (PC)
MGICA (1992) Ltd v Kenny & Good Pty Ltd & Anor (1996) 61 FCR 236
R v Lozano (unreported, NSW Court of Criminal Appeal, 10 June 1997)
R v Rees [2000] NSWSC 643
Kuvanci v Scott [2004] ACTSC 16
R v Esposito (1998) 45 NSWLR 442
Papakosmas v The Queen (1999) 196 CLR 297
R v BD (1997) 94 A Crim R 131
R v Maher [2005] ACTSC 41
R v Shorten [2004] NSWCCA 266
Ignjatic v R (1993) 68 A Crim R 333
R v Apostilides (1984) 154 CLR 563
R v Bell [2005] ACTSC 123
R v Doyle (1996) 84 A Crim R 287
Nabanardi v Minner (1992) 107 FLR 172; 62 A Crim R 325

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 39 - 2005
No. SCA 31 of 2005

Judges: Higgins CJ, Crispin P and North J
Court of Appeal of the Australian Capital Territory
Date: 30 June 2006

IN THE SUPREME COURT OF THE     )          No. ACTCA 39 - 2005
  )          No. SCA 31 of 2005
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON…

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 Stevens v McCallum

Details

AGLC: Stevens v McCallum [2006] ACTCA 13
Case: [2006] ACTCA 13
Decision Date: 30 June 2006

CaseChat Overview and Summary

Stevens v McCallum concerned an appeal against a conviction for assault and a subsequent finding of breach of recognisance. The appellant, Stevens, had pleaded guilty to assault and also to a breach of a protection order, which led to a breach of recognisance. The appeal raised issues concerning the safety and satisfaction of the conviction, the alleged incompetence of counsel, and the application of sentencing principles.

The primary legal issues before the court were whether the conviction for assault was unsafe and unsatisfactory due to the incompetence of the appellant's legal representation, and whether this incompetence resulted in a miscarriage of justice. Additionally, the court considered the proper application of the principles established in *De Simoni* when sentencing for the assault, and whether the Magistrate erred in failing to consider all admitted or proved facts in relation to the prior offence when dealing with the breach of recognisance.

The Court of Appeal upheld the appeal, finding that the conviction for assault was indeed unsafe and unsatisfactory. This determination was based on the incompetence of the appellant's counsel, which led to a loss of the chance of acquittal. Consequently, the conviction and sentence for assault were set aside and remitted to the Magistrates Court for a rehearing. In light of this, the finding of breach of recognisance and its associated sentence were also set aside and remitted to the Magistrates Court to be dealt with after the rehearing of the assault matter. Leave to appeal was granted regarding the sentence for assault, with that matter remitted to the Magistrate for the limited purpose of re-calculating the commencement date of the sentence, if necessary.

Orders

Orders of the court

Appeal be upheld.

The conviction and sentence for assault be set aside and remitted to the Magistrates Court for hearing.

In consequence of the above, the finding of the breach of recognisance and sentence be set aside and remitted to the Magistrates Court to be dealt with after the rehearing of the assault matter.

Grant leave to appeal from the sentence imposed by Magistrate Somes regarding an assault. That matter is to be remitted to Magistrate Somes for the limited purpose of re-calculating the commencement date of sentence, if required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Stevens v McCallum [2006] ACTCA 13

Most Recent Citation

Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43

Cases citing this decision · 9 of 9 shown

Director of Public Prosecutions v Parker
[2024] ACTSC 125

…2] ACTSC 236 R v Reid [2016] ACTSC 24 R v Stanley [2015] ACTSC 322 R v Swift [2007] VSCA 52; 15 VR 497 R v Wright [2019] ACTSC 146 Stevens v McCallum [2006] ACTCA 13 Taylor v R [2020] NSWCCA 355 White v R [2016] NSWCCA 190; 261 A Crim R 302…
Faris v Savage (No 2)
[2020] ACTSC 219 Para 1

…In Stevens v McCallum [2006] ACTCA 13 the Court of Appeal conducted a lengthy review of the relevant case law on this topic, referring to a number of the cases outlined above.…
Barron v Laverty
[2019] ACTSC 198 Para 1

…ng any extenuating circumstances) and subsequent events, knowing that there has been non-compliance with the good behaviour order: Stevens v McCallum [2006] ACTCA 13 at [207]. The Sentencing Act applies in the same way that it applies to an original sentencing exercise: s 110(4) of the Sentence Administration Act…
Australian Building and Construction Commissioner v O'Connor (No 3)
[2018] FCA 43 Para 6

…to the extent that the witness’ memory was revived. They referred to Dillon v Cush; Dillon v Boland [2010] NSWCA 165 at [95] and Stevens v McCallum [2006] ACTCA 13 at [179]. The respondents also submitted that document 4 was hearsay and not admissible by reason of s 59. They submitted that s 32 was a machinery pro…
Whittaker v Simpson
[2017] QDC 230 Para 1

…The questions or issues to be determined on the breach hearing are:[9] [9] Cf. Stevens v McCullum [2006] ACTCA 13, [92]-[94].…
R v Anil Sharma
[2009] ACTSC 154 Para 1

…ars that the purpose of the statement is to indicate what evidence the person would give as a witness in the proceedings. In Stevens v McCallum [2006] ACTCA 13 (30 June 2006) at [169] the Court of Appeal observed that s 66(3) does not exclude from its exclusionary scope statements merely because they are “prelimin…
Hakimi v Legal Aid Commission (ACT); the Australian Capital Territory (Intervener)
[2009] ACTSC 48 Para 1

…ect. While there are statements that the common law is accurately described as a right not to be tried unfairly (see, for example, Stevens v McCallum [2006] ACTCA 13) this has to be seen in the context in which it was identified, where Deane J said in Jago v District Court of New South Wales (1989) 168 CLR 23 at 5…
R v Fearnside
[2009] ACTCA 3 Para 1

…The Court was also referred to the decision in Stevens v McCallum [2006] ACTCA 13. In that case the Court referred to s 21(1) of the HRA and then said (at [138]):…
R v Da
[2008] ACTSC 26 Para 1

…and as a result held that there is, or ought to be, a right recognised under common law to a fair trial. See also Cornelius Stevens v Emily McCallum [2006] ACTCA 13. We do not have to have that debate in this Territory because that right is conferred by the Human Rights Act 2004 , thereby modifying the common law…

View all 9 citing cases →

Cases cited in this decision · 24 of 24 shown

R v Esposito
[2009] VSCA 277 Para 1

…Connolly J in Kuvanci (supra) also referred to R v Esposito (1998) 45 NSWLR 442. In that case, a witness statement taken by a police officer in not dissimilar circumstances from this case was, though within s 66(2) ( Evidence Act ), held to be excluded by s 66(3) ( Evidence Act ).…
Nudd v The Queen
[2006] HCA 9 Para 1

…A more recent decision, handed down after argument in this case was concluded, is Nudd v The Queen [2006] HCA 9; 80 ALJR 614. In that case, counsel and solicitor for the accused were alleged to have failed to obtain relevant instructions, to have understood the elements of the offence and to have considered app…
Si bhnf CC v KS bhnf Is
[2005] ACTSC 125 Para 1

…Those rights are both recognised and enforceable (see R v YL [2004] ACTSC 115; Skaramuca v Craft [2005] ACTSC 61; SI bhnf CC v KS bhnf IS [2005] ACTSC 125). There is, of course, no specified remedy for breach but, in proceedings of the kind now under consideration, the action required to remedy a breach of s 21(1)…
R v Bell
[2005] ACTSC 123 Para 1

…or ex-partner, particularly in the presence of a child of the relationship, treating it as serious and deserving of condign punishment. (See R v Bell [2005] ACTSC 123 at [31]).…
Skaramuca v Craft
[2005] ACTSC 61 Para 1

…Those rights are both recognised and enforceable (see R v YL [2004] ACTSC 115; Skaramuca v Craft [2005] ACTSC 61; SI bhnf CC v KS bhnf IS [2005] ACTSC 125). There is, of course, no specified remedy for breach but, in proceedings of the kind now under consideration, the action required to remedy a breach of s 21(1)…
R v Adam Garry Maher
[2005] ACTSC 41 Para 1

…nditionally admitted, evidence of the truth of its contents, not merely supportive of the credibility of the complainant. (See also R v Maher [2005] ACTSC 41 [23-28], [71-72]).…
D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12 Para 1

…right to the provision of competent legal counsel in Dietrich v The Queen (1992) 177 CLR 292; TKWG (supra) and D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; 214 ALR 92.…
R v YL
[2004] ACTSC 115 Para 1

…Those rights are both recognised and enforceable (see R v YL [2004] ACTSC 115; Skaramuca v Craft [2005] ACTSC 61; SI bhnf CC v KS bhnf IS [2005] ACTSC 125). There is, of course, no specified remedy for breach but, in proceedings of the kind now under consideration, the action required to remedy a breach of s 21(1)…
R v Shorten
[2004] NSWCCA 266 Para 1

…By reason of the tender, to echo the words of Dowd J in R v Shorten [2004] NSWCCA 266 [27], the appellant clearly lost “a substantial chance of acquittal”. Was it, also, however, a “miscarriage of justice”?…
Huseyin Kuvanci v Shane Scott
[2004] ACTSC 16 Para 1

…In Kuvanci v Scott [2004] ACTSC 16 Connolly J considered the application of s 66(3) ( Evidence Act ). However, the statement in question had been made by an assault victim, identifying (or tending to identify) the appellant as the assailant thus falling outside the exclusionary words of s 66(3) ( Evidence Act ).…
TKWJ v The Queen
[2002] HCA 46 Para 1

…r Elmaraazey’s tender of and his cross-examination of the informant about exhibit 3 constituted “flagrant incompetence” (see TKWG v The Queen (2002) 212 CLR 124; R v Birks (1990) 19 NSWLR 677).…
R v Rees
[2000] NSWSC 643 Para 1

…The interaction of these provisions was considered by Bell J in R v Rees [2000] NSWSC 643. It was a not dissimilar situation, absent the tender of the prior statement by defence counsel. There was a point of difference also in that her Honour was satisfied that the witness was feigning a lack of current recollectio…
R v McIntyre
[2000] NSWCCA 6 Para 1

…Reference was made to R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211. In that case, counsel had engaged in extremely offensive and improper comments and abuse directed towards the Crown prosecutor and the judge, some of it in front of the jury. Hulme J (Sully and Hidden JJ agreeing) could only describe it as “appa…
Papakosmas v The Queen
[1999] HCA 37 Para 1

…In Papakosmas v The Queen (1999) 196 CLR 297 statements were made by a complainant to various persons, shortly after the event alleged, to the effect that the appellant had raped her. The statements were tendered as evidence of lack of consent.…
R v Hunter and Sara
[1999] NSWCCA 5 Para 1

…Another case referred to was R v Hunter and Sara [1999] NSWCCA 5; 105 A Crim R 223. Again, a failure to ask for separate trials had been relied upon as demonstrating incompetence leading to a miscarriage of justice.…
Dietrich v The Queen
[1992] HCA 57 Para 1

…ra). His Honour found recognition of, at least, an implicit assumption of a right to the provision of competent legal counsel in Dietrich v The Queen (1992) 177 CLR 292; TKWG (supra) and D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; 214 ALR 92.…
R v Apostilides
[1984] HCA 38 Para 1

…of the prosecutor. However, a decision of that kind might, in retrospect, be seen to have given rise to a miscarriage of justice (see R v Apostilides (1984) 154 CLR 563, 575).…
R v De Simoni
[1981] HCA 31 Para 1

…g the findings concerning sentencing, alleging his Honour erred in not finding that her Worship had breached the De Simoni principles ( R v De Simoni (1981) 147 CLR 383) and in not finding that her Worship should have had regard to the facts admitted or proved in respect of the prior offence before imposing an additi…
Tuckiar v The King
[1934] HCA 49

…rickland v Washington (1984) 466 US 668 Dietrich v The Queen (1992) 177 CLR 292 D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; 214 ALR 92 Tuckiar v The Queen (1934) 52 CLR 335 R v Peeris [1988] EWCA Crim 597 R v YL [2004] ACTSC 115 Skaramuca v Craft [2005] ACTSC 61 SI bhnf CC v KS bhnf IS [2005] ACTSC 125 R v Joani…
Limited v Kenny & Good Pty Limited
[1996] FCA 1222 Para 1

…Lindgren J, in MGICA (1992) Ltd v Kenny & Good Pty Ltd & Anor (1996) 61 FCR 236, held that the common law test for “refreshment” of memory had not been displaced by s 32 and s 122 ( Evidence Act ). In other words, the document in question may be tendered only if, and so far as, opposing counsel has cross-examined up…
Sungsuwan v R
[2005] NZSC 57 Para 1

…the decisions of the Canadian Court of Appeal for Ontario ( R v Joanisse (1995) 102 CCC (3 rd ) 35); The Supreme Court of New Zealand ( Sungsuwan v R [2005] NZSC 57) and the Privy Council ( Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 (PC)), in so far as they derive support from the ICCPR or the ECHR,…
[2005] 1 WLR 2421
[2005] 1 WLR 2421 Para 1

…102 CCC (3 rd ) 35); The Supreme Court of New Zealand ( Sungsuwan v R [2005] NZSC 57) and the Privy Council ( Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 (PC)), in so far as they derive support from the ICCPR or the ECHR, have special resonance. It follows that, in this Territory, at least under Territ…
Strickland v Washington
(1984) 466 US 668 Para 1

…that, his Honour had regard to the enactment of constitutional or quasi-constitutional rights to due process. O’Connor J in Strickland v Washington (1984) 466 US 668 at 687 is, for example, cited saying –…
Orta-Ekenaike v Victoria Legal Aid
Para 1

…least, an implicit assumption of a right to the provision of competent legal counsel in Dietrich v The Queen (1992) 177 CLR 292; TKWG (supra) and D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; 214 ALR 92.…

Legislation cited in this decision · 5

Evidence Act 1995 (Cth)
108, 122, 135, 136, 137, 165, 32, 38, 43... 13 mentions (from Para 1)
Crimes Act 1900 (ACT)
26, 360, 404 4 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
98, 99 3 mentions
Human Rights Act 2004 (ACT)
21 2 mentions (from Para 1)
Protection Orders Act 2001 (ACT)
34 2 mentions (from Para 1)