Criminal law: November 2014

High Court reconsiders test for indictable appeals lodged out of time Kentwell v The Queen [2014] HCA 37; O’Grady v The Queen [2014] HCA 38

In two cases heard together, the High Court of Australia has reconsidered the test for indictable appeals lodged out of time. It set aside the Court of Criminal Appeal’s (CCA) preferred approach and found that the test for late appeals requires a broad consideration of ‘what the interests of justice require in the particular case’, rather than a more limited question of ‘substantial injustice’. Although these cases related to ‘Muldrock error’ appeals, the test will be applicable to any appeal lodged out of time.

Since 2011, a large number of appeals have been lodged as a result of the HCA changing the way we sentence for standard non-parole period offences. The result is that about seven years of standard non-parole period (SNPP) sentences might have been “wrongly” decided because of a change in the law, though they were correctly decided at the time. Obviously, many of those appeals are significantly out of time.

So, in 2013, the CCA reviewed the authorities about retrospective change to the law and determined that the test for late appeals should include consideration of ‘the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result.’ (Abdul v R [2013] NSWCCA 247 at [53] – emphasis added).

But in Kentwell and O’Grady, the HCA has held that Abdul was wrongly decided insofar as it will not be necessary for an appellant to show that ‘substantial injustice’ would follow if leave to appeal were refused. The other factors from Abdul remain relevant, though, as is the prospect of success of the appeal.

Still, it’s all a poor substitute for just lodging in time.