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9
Court of Criminal Appeal 9 August 2010

McCall v R

[2010] NSWCCA 174

Homicide
CRIMINAL LAW LEAVE TO APPEAL AGAINST CONVICTION CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE APPLICATION LACKING IN MERIT

Citation: McCall v R [2010] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 9 August 2010
Judge(s): McClellan CJ at CL; Hislop J; Latham J

Background

The applicant was convicted of murder by a jury in September 2007 and sentenced to 29 years and 4 months imprisonment, with a non-parole period of 22 years, following a trial before Barr J in the Supreme Court. The Crown case was that the applicant, together with two others, kidnapped a man from premises in Wollstonecraft and ultimately threw him from a cliff at the Gap into the ocean.

The applicant sought leave to appeal both the conviction and the sentence, but the application was significantly out of time. The time for filing a notice of intention to appeal had originally been extended to June 2008, yet no notice was filed. An application for a further extension was not filed until December 2009, more than two years after the verdict.

The sole ground of appeal against conviction concerned the trial judge's decision to allow the Crown to cross-examine one of its own witnesses, an accomplice called Mr Petrou, under section 38 of the Evidence Act 1995. The sentence appeal challenged the factual basis upon which the trial judge had sentenced the applicant.

  • Whether the applicant had provided a satisfactory explanation for the significant delay in filing the appeal, so as to justify a grant of leave to appeal out of time
  • Whether the trial judge erred in granting the Crown leave under section 38 of the Evidence Act 1995 to cross-examine its own witness, Mr Petrou, as an unfavourable witness
  • Whether the trial judge was required to sentence the applicant on the Crown's alternative case theory (joint criminal enterprise and reckless indifference) rather than the primary case (that the applicant personally threw the deceased from the cliff)

Decision

Conviction appeal: delay

The Court found the explanation for the delay entirely unsatisfactory. The applicant's solicitor filed an affidavit describing a history of inattention to the matter, and the same counsel who appeared at trial also appeared on the appeal, undermining any suggestion that access to advice was the real obstacle. Applying the principle in R v Lawrence (1980) 1 NSWLR 122, the Court reiterated that considerable delay requires exceptional circumstances before an appeal will be permitted to proceed.

Conviction appeal: section 38 cross-examination

Mr Petrou was a reluctant witness who had to be brought to court by bench warrant. His evidence, both on the voir dire (the preliminary hearing conducted outside the jury's presence, known as a "Basha inquiry") and before the jury, was marked by implausible denials, claimed ignorance of basic geography, and contradictions about phone records. The trial judge found that Mr Petrou was not making a genuine attempt to give evidence and was unfavourable to the Crown. The Court found the trial judge's decision to grant leave under section 38 was plainly open on those findings, and that defence counsel had not identified any concrete prejudice flowing from the grant of leave. The ground of appeal was characterised as lacking in merit.

Sentence appeal

The trial judge accepted the evidence of Mr "X" that the applicant personally took hold of the deceased and threw him from the cliff. The Court confirmed that a sentencing judge is not obliged to adopt the most favourable version of events for an offender, but must determine the relevant facts to the appropriate standard. The trial judge had assessed Mr "X" as a witness and was entitled to prefer that account. The murder was found to be above the mid-range of objective seriousness, and the Court considered the sentence entirely appropriate. Although the Court indicated it would not have refused the sentence appeal solely on the ground of delay, given the length of the sentence, the merits provided a separate and sufficient basis for refusal.

Orders Made

  • Leave to appeal conviction refused.
  • Leave to appeal against sentence refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that considerable delay in filing an appeal notice requires exceptional circumstances to justify leave, and that inattention by legal representatives does not constitute a satisfactory explanation.
  • A trial judge's decision to grant leave under section 38 of the Evidence Act 1995 to cross-examine an unfavourable witness will be upheld where the judge makes clear findings that the witness is not genuinely attempting to give evidence, and where no concrete prejudice to the defence can be identified.
  • When sentencing, a judge is not required to adopt the version of events most favourable to the offender; the judge must determine the facts to the appropriate standard, and is entitled to accept or reject witness evidence based on the trial record.
  • In dismissing the sentence appeal, the Court applied the principle from Chow v DPP (1992) 28 NSWLR 593 that the sentencing judge determines the relevant facts independently, rather than simply defaulting to the alternative case put by the Crown.
  • Lack of merit in the grounds advanced remains a fully independent basis for refusing leave, even where the Court would otherwise have looked past delay given the seriousness of the underlying sentence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 38 (cross-examination of unfavourable witnesses)

Cases
- R v Lawrence (1980) 1 NSWLR 122
- R v Gregory [2002] NSWCCA 199
- Chow v DPP (1992) 28 NSWLR 593
- R v Espito (1998) 105 A Crim R 27