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[2001] WASCA 258
appellant. Application allowed; leave granted to withdraw the notice of abandonment; the appeal was reinstated and the initial notice of appeal to stand despite the applicant's delay (paras 13, 17).
Mullally filed an appeal, then signed a formal notice abandoning it shortly before the hearing. He later swore that he wrongly believed the form merely removed the matter from the hearing list and that he did not appreciate the full, dismissive effect of the form. The Crown did not cross-examine him. The Court applied the established 'nullity' test (derived from R v Medway): if the appellant's mind did not go with the act of abandonment, the notice may be treated as a nullity and withdrawn. The Court accepted the uncontradicted affidavit, held the notice was a nullity, allowed withdrawal, and reinstated the appeal. The Court also held the rule authorising deeming the appeal dismissed is valid under s 747 and not unreasonably made.
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1,824 words · generated 26/06/2026
Patrick Edward Mullally was convicted in the District Court of Western Australia on 20 October 1999 of stealing money from a trust account and was sentenced to two years imprisonment (eligible for parole) [1]. He filed a notice of appeal with 17 grounds on 4 November 1999 [2]. On 31 July 2000 he filed a formal notice of abandonment under Order IX r 13 of the Criminal Practice Rules, which provides that an appellant may abandon an appeal by filing the prescribed Form No 7 and that, upon such notice, the appeal ‘‘shall be deemed to have been dismissed by the Court of Criminal Appeal’’ [2–3]. The notice was filed three days before the scheduled hearing [2].
1 cited instrument linked from this judgment.
About six months later, on 12 February 2001, Mullally sought leave to withdraw the notice of abandonment and an extension of time to appeal [4]. His proposed grounds were narrower than originally lodged, but included matters already pleaded in the original notice. In a supporting affidavit Mullally deposed he had signed the abandonment form believing only that it would remove the appeal from the list of cases to be heard; he said he had not had legal advice about the form’s effect, that he had been distressed by senior counsel’s adverse view of the appeal, and that Registry staff had faxed him a blank precedent which was typed and filed by his daughter [8–9]. The Crown chose not to cross-examine Mullally on his affidavit [13].
The Court of Criminal Appeal (Kennedy J, Wallwork J and Owen J) allowed the application and granted leave to withdraw the notice of abandonment, treating the notice as a nullity because Mullally's mind had not gone with the act of abandoning his appeal [13, 17, 22–25]. The Court also rejected Mullally’s challenges to the validity of Order IX r 13 and to its reasonableness under administrative law principles [14–16, 20–21].
Two main legal strands determine the result.
First, the procedural rule and its validity. Order IX r 13 has the operative deeming clause that the filing of a Form No 7 constitutes dismissal of the appeal. The Court held the rule was a rule of practice and procedure capable of being made under s 747 of the Criminal Code, because it is ancillary and convenient for the efficient conduct of appeals (Kennedy J) [14–15]. The Court rejected the submission that the deeming provision was ultra vires or so unreasonable that no reasonable authority would make it (invoking the Wednesbury line of authority by analogy) [15–16, 20–21].
Second, the nullity test for withdrawal of abandonment. The Court applied the nullity principle stated in R v Medway and applied in Western Australian authorities such as Hastie and Bridges: the court may allow withdrawal only where the abandonment was a nullity because the appellant's mind did not go with the act, in short, where the abandonment was not a deliberate and informed decision [5–6, 22]. The Court stressed it had no broader inherent jurisdiction to allow withdrawal except in such cases [5].
Applying the test, the pivotal fact was that Mullally swore, uncontradicted, that he signed the notice believing it merely removed the matter from the list, and that he would not have signed it if he had appreciated its finality [8–9, 13, 23]. The Crown did not cross-examine, so the court accepted the affidavit as uncontroverted and not inherently improbable; on that basis the Court treated the notice as a nullity and granted leave to withdraw [13, 23–24]. The Court expressly recognised that wrong advice about prospects of success generally does not vitiate an abandonment, but distinguished that principle where the mistake goes to the nature of the act itself (i.e. what the form accomplished) [5–7, 22–25].
Before this decision, the governing authorities were R v Medway (the nullity test), which established that abandonment could be treated as a nullity where the abandonment was not a deliberate and informed decision; Hastie and Bridges had applied or considered that approach in WA (paras 5–7). The law thus required proof that the appellant's mind did not accompany the abandonment; wrong legal advice on the merits was generally not enough to vitiate abandonment.
Mullally confirms and applies that existing framework in three respects:
After Mullally, the practical effect is that courts will continue to require proof that an abandonment was not a deliberate and informed act, but courts may readily accept unchallenged sworn evidence that the filing was the product of a mistake as to the nature of the form or process, provided it is credible and not inherently improbable and the opposing party had a chance to test it by cross-examination.
Paragraph 13 (Kennedy J): "On this basis, the notice of abandonment should be treated as a nullity and leave granted to the applicant for him to withdraw it."
Plain English: The Court accepted Mullally's sworn explanation and held the abandonment form had no legal effect because he did not really understand what he was doing; the Court therefore allowed him to undo it.
Paragraph 5 (Kennedy J quoting Medway): The court explained there is no general inherent jurisdiction to allow withdrawal other than where abandonment is a nullity; the nullity test's kernel is that the abandonment was not a deliberate and informed decision.
Plain English: The Court will not generally let people change their minds after they formally abandon an appeal. The only basis for undoing the abandonment is if the abandonment was never really effective because the person did not understand or deliberately intend it.
Paragraph 15 (Kennedy J): The rule's deeming provision is ancillary and convenient; it provides an efficient method to bring an end to an appeal without the necessity of appearance.
Plain English: The rule's statement that filing the form counts as dismissal is simply a practical device for running the court's list efficiently; it is within the judges' power to make such a rule.
Paragraphs 22–24 (Owen J): A notice will not be nullified merely because of wrong advice on merits; here, however, the unchallenged evidence showed the mistake was about the nature of the process itself.
Plain English: Bad legal advice about chances of success does not automatically let someone undo the abandonment. But if the person thought the form only did some administrative thing (like removing the case from the courtroom list), and the court accepts that evidence, the form can be set aside.
The precedent is engaged when:
Under those circumstances the court may treat the notice as a nullity and grant leave to withdraw it, provided the judge finds the applicant's evidence credible and not inherently improbable (paras 8–13, 22–25).
Within the reasons in this judgment the Court reviews and applies earlier authorities: R v Medway established the nullity test and was applied here, Hastie had been followed in WA, and Bridges was a later WA authority that reviewed Hastie and confirmed similar principles [5–6]. Mullally applies and reinforces that line: it reiterates that wrong advice on merits alone is not enough, but a mistake about the character of the act (a misunderstanding of what the form accomplished) can render the notice a nullity if the evidence proves that the mind did not go with the act [5–7, 22–25].
Mullally itself therefore continues the trajectory of WA authorities approving a narrow, structured nullity inquiry: courts are cautious about allowing post-abandonment withdrawals, but will permit them where credible, untested or uncontradicted evidence demonstrates a fundamental misunderstanding about the process.
Note: this deep dive summarises how the Court of Criminal Appeal in Mullally treated the earlier authorities it cites. Practitioners should consult more recent decisions (post-2001) for any developments in the authoritative application of the nullity test.
Several issues remain fact-specific or under-delineated:
Evidence standard and proof: Mullally turned on uncontradicted affidavit evidence and absence of cross-examination. The Court did not articulate a rigorous standard of proof (balance of probabilities is implicit) for the nullity finding. How strong must the evidence be where the opposing party does cross-examine? The judgment leaves some uncertainty as to thresholds and the needed corroboration.
Scope of mistakes sufficient for nullity: The Court rejected wrong advice about merits as alone sufficient, but accepted a mistake about the nature of the form. The boundary between a mistake about merits and a mistake about legal effect may be difficult in marginal cases; Mullally guides but does not fully delimit that boundary.
Timing and delay: Mullally permitted reinstatement despite delay. The judgment did not lay down a specific rule about when delay or prejudice to the respondent would prevent withdrawal; those will remain case-sensitive inquiries.
Role of Registry/administrative conduct: Mullally recited that Registry staff faxed a blank precedent and that the applicant's daughter typed and filed the form. The judgment accepts the context as part of the applicant's explanation but does not create a separate doctrine about administrative assistance or court registry practices inducing mistakes. Future cases may develop principles on when registry conduct contributes to nullity.
Remedies and consequences: Mullally treated the notice as a nullity and reinstated the original notice of appeal. It leaves open whether and when the Court could impose conditions, directions, or remedies to protect the respondent from prejudice arising from delay, such as costs, limitation of grounds, or directions on evidence.
Practitioners should therefore view Mullally as strongly supportive of reinstatement in cases of credible mistakes as to process, but not as opening the door to routine undoing of deliberate abandonments. Each application will depend on the quality of the evidence, whether it is tested, and whether the respondent demonstrates prejudice.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MULLALLY -v- THE QUEEN [2001] WASCA 258
Criminal law and procedure - Application for leave to appeal against conviction - Notice of abandonment filed - Subsequent application seeking leave to withdraw notice of abandonment - Whether notice a nullity - No cross-examination on applicant's affidavit - Leave to withdraw notice granted
Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR 77
Broadcasting Co Australia Pty Ltd v The Commonwealth [1935] HCA 3; (1935) 52 CLR 52
Carbines v Powell [1925] HCA 16; (1925) 36 CLR 88
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Gibson v Mitchell [1928] HCA 37; (1928) 41 CLR 275
Grech v Bird [1936] HCA 59; (1936) 56 CLR 228
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402
R v Bell (1987) 8 NSWLR 311
R v Johnson (1992) 57 A Crim R 290
R v La Rosa (1999) 105 A Crim R 362
R v Morey (1993) 65 A Crim R 145
R v Shannon v R (1982) 32 SASR 5
R v Stone (1998) 42 A Crim R 189
R v Tabe [1983] 2 Qd R 60
R v Zakarian [1971] VicRp 57; [1971] VR 455
Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629
1 KENNEDY J: On 20 October 1999, the applicant was convicted, after a trial by jury in the District Court, of one count of stealing. He was found to have stolen a sum in excess of $26,000 by transferring it from his trust account to his personal account in satisfaction of legal costs. He was sentenced to a term of imprisonment of 2 years, with eligibility for parole. He was released on parole on 23 June 2000.
2 On 4 November 1999, the applicant filed a notice of appeal against his conviction. The notice contained 17 grounds. Nearly nine months later, the applicant filed a notice of abandonment of his appeal in the form set out in the Schedule to the Criminal Practice Rules 1914, by which he gave notice that he did not intend further to prosecute his appeal, but that he thereby abandoned all further proceedings in regard thereto as from the date of the notice, 31 July 2000. This notice was signed only three days before the date fixed for the hearing of the applicant's appeal.
3 Order IX, r 13 of the Criminal Practice Rules provides:
"An Appellant at any time after he has duly served notice of Appeal or of Application for leave to Appeal, or of application for extension of time within which such notices shall be given, may abandon his appeal by giving notice of abandonment thereof in the Form No 7 in Part IV of the Schedule to these Rules to the Registrar, and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Criminal Appeal."
In terms of the rule, the appeal was therefore deemed to have been dismissed.
4 Nevertheless, on 12 February 2001, the applicant gave notice of an application to obtain the leave of the Court of Criminal Appeal to withdraw his notice of abandonment. He also sought an extension of time in which to appeal against his conviction. The proposed grounds of appeal were now reduced to two, the first contending that the learned trial Judge had erred in law in admitting into evidence what was described as a draft unsigned letter said to be from the applicant to the Department of Social Security which was inadmissible or, in any event, ought to have been excluded in her Honour's discretion, and the second contending that the verdict of the jury was unreasonable and/or could not be supported. These grounds were to be found in grounds 1 and 17 respectively in the original grounds of appeal.
5 In R v Medway [1976] QB 779, a specially constituted Court of Appeal, Criminal Division, comprising Lord Widgery CJ, Stephenson LJ, O'Connor, Lawson and Jupp JJ, considered the circumstances in which a notice of abandonment of an application for leave to appeal may be withdrawn. The relevant English rule provided that, where an appeal or an application for leave to appeal is abandoned, the appeal or application shall be treated as having been dismissed or refused by the court. It being conceded that the court had jurisdiction to allow a notice of abandonment of an application for leave to appeal to be withdrawn, the first matter for decision was said to be, what were the conditions to be satisfied for the exercise of that jurisdiction? Lawson J, who read the judgment of the court, said at 798 - 799:
"The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the court to say that that abandonment should be treated as a nullity, there co-exists an inherent jurisdiction, in other special circumstances, enabling the court to give such leave. We are satisfied and hold that there is no such jurisdiction. In our judgment the kernel of what has been described as the 'nullity test' is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise. As we have said at the outset, the jurisdiction of this court and of its predecessor is based upon statute and we have been referred to and have found no authority to support the existence of a parallel inherent jurisdiction. Indeed the authorities to which we have been referred, with the possible exception of Lord Reading CJ's observations in Rex v Pittman (1916) 12 Cr App R 14, support only the proposition that the inherent jurisdiction to regulate proceedings before the court can come into operation where, in cases of statutory jurisdiction, there is a lis extant before the court upon which that inherent jurisdiction can operate."
6 R v Medway was followed by this Court in Hastie v R [1981] WAR 365. However, by reason of some observations made in Turan v The Queen (1989) 2 WAR 140, at 146, a special Bench of five Judges was convened in Bridges v The Queen (1998) 20 WAR 59 in order that the correctness of the decision in Hastie v The Queen could be reviewed. The result of that review was that Hastie v The Queen was approved and applied.
7 In the course of his reasons in Bridges v The Queen, with which the other members of the court agreed, Ipp J, at 65 - 66, pointed out that wrong advice as to the prospects of success on appeal does not give rise to a nullity according to the test in R v Medway. In that case, Medway had filed a notice of abandonment on the basis of legal advice which, according to his submission, was wrong due to a fundamental misapprehension as to the law. Lawson J, at 799, said:
"Even if we accepted the factual basis for this contention, which we do not, we do not think that a deliberate decision to abandon taken as a result of advice which is founded on a mistaken view of the law is in itself capable of vitiating the effectiveness of the notice to abandon so as to enable the court to treat it as a nullity."
See also R v Green [1988] 1 Qd R 408 and R v Gardiner [1970] VicRp 34; [1970] VR 278.
8 In his affidavit in support of his application, the applicant deposed that he had signed the notice of abandonment personally, and that he had not received any legal advice as to the effect of the notice. He claimed that a senior QC had expressed to him an opinion on the merits of his grounds of appeal, as they were then formulated. His opinion was that the appeal was unlikely to succeed, and that it would be in his interests not to proceed with it on 3 August 2000. The name of the Queen's Counsel was not stated.
9 The applicant then went on to depose that he had been quite devastated by the advice of the Queen's Counsel, as he had believed there were good grounds for his appeal. He claimed that the advice was given to him on the Wednesday before the hearing, which was set down for the following Tuesday, and that, in the days following, he had found it hard to concentrate or to think clearly, and all he wanted was for the matter to go away. He said he telephoned the Supreme Court to ascertain what was needed to get the appeal out of the list of cases to be heard, and that the Registry Staff informed him that he had to sign a notice. The Court faxed a blank precedent to him, which was then typed up, signed by him and witnessed by his daughter, who duly filed it at the Court. He maintained that the only matter in his mind at the time when he signed the notice was that the appeal had to be taken out of the list of cases for hearing. He further claimed that, if he had appreciated or understood that the notice was a full dismissal of his case on the merits, and that it barred all future action on the appeal, he would not have signed it. He also claimed, however, that he had signed the form believing it to be the abandonment of the appeal as constituted by the proposed grounds of appeal, but not of his rights for the future, should he seek to appeal and seek an extension of time in which to do so.
10 A number of comments may be made in relation to the substance of the applicant's contentions. As already noted, the presently proposed grounds of appeal had been included in the original notice of appeal. Furthermore, a reading of the notice should have dispelled any thought that the applicant was simply taking his appeal out of the list of cases to be heard and, in this context, it cannot be ignored that the applicant was himself a solicitor practising in the firm of Patrick Mullally & Co.
11 The second justification proffered by the applicant was that he believed that the signing of the letter was the abandonment of the appeal, as constituted by the grounds, but not of his rights for the future, should he seek to appeal and to seek an extension of time in which to do so. This explanation is inconsistent with the applicant's first claim, namely, that he was merely trying to take the appeal out of the list for hearing.
12 Another justification appears in the applicant's affidavit in support of an application for an extension of time for filing a new notice of appeal. This was that he had received legal advice to abandon the appeal, and that he had done so before it came on for hearing.
13 Notwithstanding the foregoing, the fact remains that the Crown did not elect to cross-examine the applicant on his affidavits, and the Court is left with uncontradicted evidence from the applicant that his mind did not go with his actions, which evidence is not, in my view, so inherently improbable as to warrant its rejection. On this basis, the notice of abandonment should be treated as a nullity and leave granted to the applicant for him to withdraw it. The effect of the withdrawal will be that the appeal is reinstated and the initial notice of appeal will stand as the notice of appeal despite the applicant's delay.
14 It is necessary, however, to consider two further submissions made by the applicant, the first of which was that O IX r 13 was invalid. The rule was made under s 747 of the Criminal Code, which relevantly provides as follows:
"The Judges [of the Supreme Court], or a majority of them, may also make general rules not inconsistent with the provisions of this Code, regulating the proceedings upon the trial of persons charged with indictable offences, and the proceedings upon informations presented by leave of the Court and the procedure and practice relative to appeals to the Court of Criminal Appeal.
Rules so made for the regulation of the procedure and practice relative to such appeals may make provision with respect to any matter for which provision is to be made under Chapter LXIX by rules of court or which it may be necessary or convenient to prescribe for any of the purposes of that chapter or for the efficient conduct of any proceedings thereunder, and may regulate generally the practice and procedure under that chapter; and the officers of any court before whom an appellant has been convicted, and the governor or other officers of any prison or other officer having the custody of an appellant, and any other officers or persons, shall comply with any requirements of those rules so far as they affect those officers or persons, and compliance with those rules may be enforced by order of the Court of Criminal Appeal.
The Judges or a majority of them may also, subject to this Code, make general rules for regulating the practice and procedure of the said court in its criminal jurisdiction."
15 The rule has a long history. The United Kingdom rule was first introduced in 1908, and it was adopted in Western Australia in 1914 and, so far as I have been able to ascertain, has never been challenged in these, or any other jurisdictions having similar rules. The applicant's argument was that the words "deemed to be dismissed" do not fall into the category of something which is necessary or convenient. In my opinion, the deeming provision is ancillary to the general operation of the rule. It provides a convenient method of bringing an end to an appeal which the appellant has decided to abandon, without the necessity for any appearance in court, but having the same effect as it would have had if the applicant had appeared and announced to the Court of Criminal Appeal his intention to abandon his appeal. The rule, in my view, relates to a
matter of practice and procedure, and it is within the rule making power of s 747 of the Code. This case is far removed from the facts of Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, to which the applicant made reference.
16 The applicant then claimed that the rule is unreasonable, basing his argument on the leading cases of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and Kruse v Johnson [1898] 2 QB 91. There is, in my view, no substance in this argument. It is not a Draconian provision, as the applicant claimed, and I am unable to accept that the rule is so unreasonable that no reasonable authority would make it. As already indicated, it provides a convenient method for an appellant/applicant to bring an appeal, or an application for leave to appeal, to an end.
17 I would allow the applicant's application and grant him leave to withdraw his notice of abandonment of his appeal.
18 WALLWORK J: I agree with the reasons for judgment of Kennedy J and with the orders proposed by his Honour.
19 OWEN J: I have read the reasons that Kennedy J intends to publish. I agree with his Honour's reasons and with the conclusion that the application be allowed and that the applicant be permitted to withdraw the notice of abandonment. I should explain, in a very summary way, why I have reached that view.
20 The argument that OIX r 13 is ultra vires is untenable. At the relevant time it provided:
"An appellant ... may abandon his appeal by giving notice of abandonment thereof in [the prescribed form] and upon such notice being given an appeal shall be deemed to have been dismissed by the Court of Criminal Appeal."
21 The applicant submitted that the rule was ultra vires. The rule made under s 747 of the Criminal Code which empowers the Judges of this Court to make rules that are matters of practice and procedure and which are (among other things) "necessary or convenient ... for the efficient conduct of any proceedings [under Chapter LXIX of the Criminal Code]". In my view the rule fits within that category and is within power. The alternative argument that the rule is so unreasonable that no reasonable decision-maker could have made it is even less attractive.
22 Bridges v The Queen (1998) 20 WAR 59 confirmed that a notice of abandonment, once filed, is effective to put an end to the appeal but the Court may give leave to withdraw a notice that is a nullity. It also confirmed that a notice will be regarded as a nullity if it is not the deliberate and informed decision of the applicant. Put in a slightly different way, it will be a nullity if the mind of the applicant did not go with his or her act of abandonment.
23 As Kennedy J has pointed out, there are some inconsistencies or uncertainties in the explanation proffered to the Court by the applicant for his decision to file the notice. However, in his affidavit sworn 12 February 2001 the applicant says:
"8. ...The only matter on my mind at the time when I signed the notice was that the appeal had to be taken out of the list of cases for hearing.
9. If I had appreciated or understood that the notice was a full dismissal of the case on the merits and that it barred all future action on the appeal I would not have signed it."
24 The applicant was not cross-examined on these statements (or at all). They therefore stand entirely uncontroverted. It is true that prior to him filing the notice the applicant had received advice from senior counsel that the proposed appeal had little chance of success. However, the applicant's evidence (and these are my words, not his) is that he took it to mean that the grounds of appeal as formulated were deficient rather than that a challenge to the convictions generally was unsupportable. It was on this basis that he says he sought to have the appeal removed from the list of cases awaiting hearing. Again, this evidence is uncontroverted.
25 Bridges is also authority for the proposition that a notice will not be declared a nullity merely because it is signed as a consequence of wrong advice as to the prospects of success on appeal. But this is not a case of wrong advice on the merits of the appeal. If the applicant's evidence is accepted (and in my view it must be because it was not challenged) the mistake went to the very nature of the process itself rather than to merits of the appeal that had been instituted.
Mullally
The Queen [2001] WASCA 258
(1987) 74 ALR 77
(1935) 52 CLR 52
(1925) 36 CLR 88
(1994) 179 CLR 427
(1928) 41 CLR 275
(1936) 56 CLR 228
(1938) 60 CLR 431
(1951) 83 CLR 402
(1987) 8 NSWLR 311
(1982) 32 SASR 5
(1989) 2 WAR 140
(1998) 20 WAR 59
(1957) 96 CLR 245
Application allowed; leave granted to withdraw the notice of abandonment; the appeal was reinstated and the initial notice of appeal to stand despite the applicant's delay (paras 13, 17).