Tallon v The Queen - [1994] HCATrans 200

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B36 of 1993
B e t w e e n -
MICHAEL WILLIAM TALLON

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Tallon

11/2/94

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 FEBRUARY 1994, AT 11.27 AM

MR K.C. FLEMING, QC: If .the Court pleases, I appear with

MR A.J. RAFTER for the applicant. (instructed by
J.H. Hodgins, Director, Legal Aid Office
(Queensland))

MR B.J. BUTLER:

May it please the Court, I appear with my

learned friend, MR J.R. HUNTER, for the respondent.
(instructed by D. Field, Solicitor to Director of
Prosecutions)

MASON CJ: Yes, Mr Fleming.

MR FLEMING: If the Court pleases, the issue is a short one

and it turns upon the procedural responsibilities
contained in the Criminal Code in respect of an application by the Attorney-General against the

sentence. Your Honours have already looked, I
think, this morning at section 669A which gives the

power to the Attorney-General to appeal. The
mechanical provisions are then set out in
section 671 of the Criminal Code. A person who is
convicted may appeal by simply filing his notice of

appeal. The responsibility thereafter rests upon
the registry to ensure that the documentation goes
to the responsible authorities.
Under section 671(2) an appeal to the court by

the Attorney-General against sentence shall be made

within 28 days of the date of such sentence. The
only issue in this application is whether or not
that means something different to the

responsibilities upon an accused person. We would
submit it does and ought to mean and does mean
filing and serving within 28 days, as the rules

then take up. I will take Your Honours to the
rules in a moment.

McHUGH J: But how can the rules affect the construction of

the section?

MR FLEMING:	We accept that they cannot, Your Honour.
McHUGH J:	I do not like raising this question, but you are out of time yourself with this special leave
application, are you not?

MR FLEMING: Well, we seek the Court's indulgence in respect

of that. Indeed, one of the interesting issues
which could have arisen below is that a prisoner
could still seek an extension of time within which
to appeal, but we would submit that that is an
undesirable position for them to be in. This Court
dealt with one of the difficulties that could arise
in Jeffers v The Queen, (1993) 67 ALJR 288, just
last year. The Crown in that case appealed on the last day and there was then no opportunity for the

Tallon

11/2/94

prisoner to put his appeal in within time. The
Court of Appeal here in Queensland said that he had made an election not to appeal and then rejected an
application by him to extend the time within which
to…

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 Tallon v The Queen

Details

AGLC: Tallon v The Queen [1994] HCATrans 200
Case: [1994] HCATrans 200
Decision Date

CaseChat Overview and Summary

Michael William Tallon was the applicant seeking special leave to appeal to the High Court of Australia. The dispute concerned the procedural requirements for an appeal by the Attorney-General against a sentence imposed under the Criminal Code. The applicant argued that the Attorney-General's appeal was out of time.

The central legal issue before the High Court was the interpretation of section 671(2) of the Criminal Code, which stipulated that an appeal by the Attorney-General against sentence "shall be made within 28 days of the date of such sentence." The applicant contended that "made" in this context required both filing and service of the notice of appeal within the 28-day period, distinguishing it from the provisions governing an accused person's appeal.

The applicant's argument was that the language of section 671(2) imposed a stricter obligation on the Attorney-General than the provisions for an accused's appeal, which only required filing. The applicant submitted that this distinction was deliberate and served a purpose, although the precise rationale was not fully elaborated in the provided text. The Court considered the potential difficulties that could arise if the Crown was not required to serve the notice of appeal within the time limit, referencing a previous case, *Jeffers v The Queen*, where similar issues regarding election and extensions of time had arisen. The Court also considered the practical implications of the applicant's argument, such as a respondent evading service.

Orders