Tallon v The Queen

[1994] HCATrans 200

••

.

.

•

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 1 11/2/94

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 FEBRUARY 1994, AT 11.27 AM

Copyright in the High Court of Australia

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 2 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 appeal against his sentence. This Court said
that there was no such thing as an election not to

appeal and dealt with it there and then. But, that

is the sort of situation that could arise if the

Crown is not required to serve within the 28 days.

MASON CJ: But that is curable by granting an extension of

time.

MR FLEMING: Yes, but we would submit that that is not the

most desirable way of proceeding. The most

desirable way is that "make" means, "serve within

the 28 days" - - -

MASON CJ: But why, in a provision where there is a

reference to the notice of appeal in a subsequent

provision?

MR FLEMING:  Yes, we accept that there is such a provision,

but we simply come back and point to the difference

in the language in the two subsections and we say

that there is a rationale behind it, which we have

set out at paragraph 11 of our outlines.

TOOHEY J: But, on your argument, Mr Fleming, if someone

received a non-custodial sentence and the Crown

appealed and the person was aware that the Crown

was proposing to appeal, all they would need to do

is hide out until the 28 days had expired and then

say, the Crown is out of time.

MR FLEMING:  We accepted that as being put forward against

us, Your Honour. There are two possible answers to

that.	One is that the Crown could seek an
extension of time in which to serve.	The second is

that in all probability it would not happen very

often because if a person, for example, was given

parole or a suspended sentence there are procedures

that must be gone through, and there may well be

conditions which confine them to a particular
place, certainly to Queensland; but we accept that

there are certain situations where a person could

go to ground and not be served. But we would

submit that that is the lesser evil of the two.

The person who in all probability will be

incarcerated has to have the opportunity of getting
access to adequate legal advice, and hopefully
within time hopefully not having to go to court to

establish reasons why they should get an extension

firstly, and then in a summary way establish some

prospects of success. We would submit that that

is the less satisfactory way of proceeding.

Tallon 11/2/94

TOOHEY J: But in the end it is a matter of interpretation

of the relevant statutory provision.

MR FLEMING:  Yes, Your Honour, we accept that. I cannot

take the argument any further. We submit that

there is a distinction in the language, a

distinction there for good reason, and we would

submit that the Court of Appeal below was not

correct in what they said about it.

TOOHEY J: If anything, the distinction tells against you,

does it not, because subsection (1) where the
convicted person desires to appeal, that person

must give notice of appeal, but in the case of the

Crown it simply says an appeal shall be made.	I am
not suggesting that any distinction follows from

that, but if there is one it would seem to operate

against you rather than for you.

MR FLEMING:  We would submit not, Your Honour, because the

giving of the notice of appeal is simply that.	It
is the filing of a notice of appeal in the

registry. That is the way it is commenced, whereas

the making of an appeal connotes something

different. They are the simple propositions that

we advance, Your Honours.

MASON CJ:  Thank you, Mr Fleming. The Court need not

trouble you, Mr Butler.

The decision of the Court of Criminal Appeal

in this matter was plainly right. The application

for special leave to appeal is therefore refused.

AT 11.34 AM THE MATTER WAS ADJOURNED SINE DIE

Tallon 11/2/94