McCall v R [2010] NSWCCA 174

McCall v R [2010] NSWCCA 174

Leave to appeal against conviction was refused because the applicant gave no satisfactory explanation for the substantial delay and the proposed conviction ground lacked merit. The trial judge properly granted the Crown leave under s 38 because Mr Petrou's evidence was unfavourable and showed he was not making a genuine attempt to give evidence; no unfairness arose, no binding undertaking prevented the application, and the jury was properly directed that rejection of Mr Petrou's denials did not support or strengthen Mr "X"'s evidence. Leave to appeal against sentence was refused because the trial judge was entitled to accept Mr "X"'s account, sentence on the primary Crown case, and impose...

Jurisdiction
Australia
Judgment Date
09 August 2010
Procedural Posture
Criminal Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal; Applications Filed Out of Time
Outcome
Leave to appeal against conviction refused; leave to appeal against sentence refused.
Legal Topics
['leave to Appeal Against Conviction' 'extension of Time' 'cross Examination of Own Witness Under S 38 of the Evidence Act 1995' 'substantial Miscarriage of Justice' 'leave to Appeal Against Sentence' 'factual Basis for Sentence']
['criminal Law' 'evidence' 'sentencing'] ['leave to Appeal Against Conviction' 'extension of Time' 'cross Examination of Own Witness Under S 38 of the Evidence Act 1995' 'substantial Miscarriage of Justice' 'leave to Appeal Against Sentence' 'factual Basis for Sentence']

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Procedural Posture

Criminal Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal; Applications Filed Out of Time

Legal Issues

  1. 1 ['Whether exceptional circumstances justified granting leave to appeal out of time against conviction.' 'Whether the trial judge erred by permitting the Crown to cross-examine Mr Petrou under s 38 of the Evidence Act 1995.' 'Whether the Crown\'s cross-examination of Mr Petrou caused unfairness or a substantial miscarriage of justice by bolstering the credit of Mr "X".' 'Whether the prosecutor had undertaken not to ask Mr Petrou questions beyond those asked in the Basha inquiry.' 'Whether the trial judge erred in sentencing the applicant on the primary Crown case rather than the alternative basis of joint criminal enterprise and reckless indifference.']

Ratio Decidendi

Leave to appeal against conviction was refused because the applicant gave no satisfactory explanation for the substantial delay and the proposed conviction ground lacked merit. The trial judge properly granted the Crown leave under s 38 because Mr Petrou's evidence was unfavourable and showed he was not making a genuine attempt to give evidence; no unfairness arose, no binding undertaking prevented the application, and the jury was properly directed that rejection of Mr Petrou's denials did not support or strengthen Mr "X"'s evidence. Leave to appeal against sentence was refused because the trial judge was entitled to accept Mr "X"'s account, sentence on the primary Crown case, and impose...

Court Disposition

Leave to appeal against conviction refused; leave to appeal against sentence refused.

Orders

  • ['Leave to appeal conviction refused.' 'Leave to appeal against sentence also refused.']