Young v The Queen

[2006] HCATrans 407

[2006] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 2002

B e t w e e n -

PAUL CHARLES YOUNG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 1.51 PM

Copyright in the High Court of Australia

KIRBY J:  

Background

In August 1996, the Director of Public Prosecutions for the State of Victoria made a presentment against the applicant containing five counts charging him with offences of larceny and related offences. 

Following a voir dire, after which certain rulings were made concerning the suggested exclusion of prosecution evidence and of recorded admissions made in a record of interview, the judge of the County Court of Victoria (Judge Cullity) recorded determinations adverse to the applicant.  There followed a prosecution application for leave to amend the presentment to add a count averring the dishonest handling of goods.  Such leave was granted.  The presentment was then amended.  The applicant was re‑arraigned.  He pleaded guilty to the new count.  The trial judge accepted that plea and recorded a conviction in relation to that count.  He then adjourned the further hearing of the other charges presented against the applicant for a period of two years on condition that the applicant be of good behaviour in that period.  This course of conduct was apparently adopted in pursuance of the Sentencing Act 1991 (Vic), s 72.

During the foregoing proceedings in the County Court, pursuant to an order made under the Crimes Act 1958 (Vic), s 360A, the applicant was provided with public legal aid. He was represented by counsel when the voir dire was conducted.  Whilst so represented, the course of events just described took place.  However, immediately following the conviction and sentence, the applicant (apparently on the same date) filed a notice of application for leave to appeal against his conviction.  This complained that he had been denied natural justice and due process; that his plea had been entered under duress; and that the trial judge’s conclusions on the voir dire were void and nugatory on the basis that the police evidence was perjured. 

The Court of Appeal of Victoria heard this application.  The judgment was delivered by Winneke P (with whom Buchanan and Vincent JJA agreed).  The applicant was not legally represented before the Court.  However, he pressed his application.

In refusing leave to appeal against conviction (understandably no application was made to appeal against the sentence) the Court of Appeal made reference to the well established principle limiting to very rare cases the circumstances in which an appellate court will set aside a conviction recorded after a plea of guilty.  Reference was made to the need of an applicant, seeking such relief, to demonstrate that a miscarriage of justice has occurred.  The Court of Appeal was unpersuaded that the applicant had established any such basis for the relief claimed. 

Specifically, Winneke P referred to the transcript of evidence, taken on the voir dire before the trial judge.  He stated that the record did not disclose anything to suggest perjury on the part of the police or error on the part of the trial judge.  Indeed, Winneke P noted, as had Judge Cullity in the Country Court of Victoria, that the applicant had conceded that his treatment by the police was “all right”.  He did not assert at the time that a threat had been applied to him.  The amendment to the presentment was one that was to the benefit of the applicant.  The Court of Appeal inferred that, in pleading guilty as he had done, the applicant was well aware of what he was doing and why he was doing it.

Disposition

In this Court, the applicant has advanced seventeen grounds of appeal.  In his written case in response, the respondent submits that none of the matters raised, relating to the suggested unfairness to the applicant of appearing unrepresented in the Court of Appeal, had been advanced before the Court of Appeal. 

We have considered carefully the parties’ written summaries of argument, the reasons of the Court of Appeal and the record of the proceedings in the County Court of Victoria.

So far as the matters of substance dealt with by the Court of Appeal are concerned, no error of law or principle has been demonstrated by the applicant.  On the contrary, the case involved the application of well settled principles of law.  The prospects of disturbing the Court of Appeal’s orders in this case on that basis are non-existent. 

So far as the complaints addressed to the disadvantages of the applicant in being unrepresented in the Court of Appeal are concerned, the failure of the applicant to raise those complaints in the Court of Appeal make this an unsuitable occasion for this Court to consider that question on an appeal; cf Muir v The Queen (2004) 78 ALJR 780.

It follows that special leave to appeal should be refused.

Order

Pursuant to r 41.11.1 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 1.55 PM THE MATTER WAS CONCLUDED