McCall v R [2010] NSWCCA 174

New South Wales Court of Criminal Appeal

CITATION: McCall v R [2010] NSWCCA 174

HEARING DATE(S): 23 June 2010

JUDGMENT DATE: 9 August 2010

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 36; Latham J at 37

DECISION: 1. Leave to appeal conviction refused. 2. Leave to appeal against sentence also refused.

CATCHWORDS: CRIMINAL LAW - leave to appeal against conviction - absence of satisfactory explanation for delay and lack of merit in the appeal - CRIMINAL LAW - leave to appeal against sentence - application lacking in merit

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Principal judgment

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

PARTIES: Jason Clive McCall (applicant) The Crown

FILE NUMBER(S): CCA 2007/4302

COUNSEL: M Thangaraj/S Brogan (applicant) N Noman (Crown)

SOLICITORS: Kiki Kyriacou Lawyers (applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2006/2663

LOWER COURT JUDICIAL OFFICER: Barr J

LOWER COURT DATE OF DECISION: 16 November 2007

IN THE COURT OF CRIMINAL APPEAL 2007/4302

McCLELLAN CJ at CL HISLOP J LATHAM J

MONDAY 9 AUGUST 2010 McCALL, Jason Clive v R Judgment 1 McCLELLAN CJ at CL: The applicant was convicted of the murder of Robert Ljubic. He was sentenced to 29 years and 4 months imprisonment with a non-parole period of 22 years. 2 The appeal is out of time. 3 The jury verdict was returned on 17 September 2007 and the appellant was sentenced on 16 November 2007. The time for filing of the Notice of Intention to Appeal was originally extended by the Registrar to 10 June 2008 but a Notice was not filed. Subsequently a Notice of Application for Extension of Time to appeal was filed on 23 December 2009. No extension has been granted by the Registrar who left the matter for determination by this Court. The Crown submitted that both because of the delay and the lack of merit in the appeal leave to appeal should be refused. 4 The explanation for the delay was said to be a difficulty in obtaining advice from counsel and the settling of submissions in support of the appeal. An affidavit from a solicitor was read which relates a history of inattention to the matter. Given that counsel who appeared for the applicant at trial also appeared on the appeal I am not persuaded that any reasonable explanation has been given for the delay. 5 In R v Lawrence (1980) 1 NSWLR 122 this Court made plain that it should not be assumed that a delay in filing notices of appeal or applications for appeal will be automatically excused. Exceptional circumstances must be demonstrated. At page 148 the Court said (per Nagle CJ at CL and Yeldham J): "Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed." 6 In R v Gregory [2002] NSWCCA 199 at [41] this Court emphasised that when considering the interest of justice in relation to an application for leave to appeal the interests of the Crown, representing the community, and the administration of the law generally must be considered. The court said (per Hodgson JA, Levine and Simpson JJ agreeing): "There are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decision." 7 As I make plain below in the absence of any satisfactory explanation for the delay and the lack of merit in the ground of appeal sought to be advanced, notwithstanding that the applicant had been convicted of murder, I am not persuaded that the applicant has demonstrated that there are exceptional circumstances justifying a grant of leave. 8 The applicant sought to advance only one ground of appeal against conviction being: