R v McGrane

SUPREME COURT OF QUEENSLAND

CITATION: R v McGrane [2008] QCA 42

PARTIES: R v McGRANE, Michael (applicant)

FILE NO/S: CA No 289 of 2007 / CA No 1 of 2002 / SC No 619 of 2000

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Conviction) / Miscellaneous Application – Criminal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 5 March 2008

DELIVERED AT: Brisbane

HEARING DATE: 5 March 2008

JUDGES: McMurdo P, Fraser JA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for an extension of time refused****Application to adduce further evidence refused

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant convicted of murder – where applicant applied for extension of time to appeal against conviction – where appeal to the Court of Appeal had previously been heard and decided in respondent's favour – whether extension of time should be granted – whether appeal was available if extension was granted / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL– where applicant wished to raise medical evidence he claimed was inconsistent with the prosecution case at trial – where evidence was available at trial and at subsequent appeal to Court of Appeal, but not raised – whether application to adduce evidence should be allowed / Elliott v The Queen (2007) 82 ALJR 82, followed / Grierson v The King (1938) 60 CLR 431, followed / R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, distinguished

COUNSEL: The applicant appeared on his own behalf / R G Martin SC for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: After a lengthy trial, the applicant, Michael McGrane was convicted on 19 December 2001 of murdering Yuan Ling Chan between 24 January and 1 February 1997. His appeal against conviction to this Court was dismissed on 17 May 2002: see R v.McGrane [2002] QCA 173. He filed an application for special leave to appeal to the High Court of Australia on 13 June 2002 but abandoned that application on 21 November 2002. On 12 February 2007 he applied to this Court for an extension of time for leave to appeal and to adduce further evidence. He abandoned those applications on 11 April 2007. On 26 October 2007 he filed further applications for an extension of time to appeal and to adduce further evidence. It can be seen that his application for extension of time to appeal is many years late, and that he has already had a concluded appeal which was unsuccessful in this Court.

The grounds of his most recent application for an extension of time are as follows:

"(1)Fresh and new evidence has been discovered which contradicts the mode and cause of death set out in the prosecutions case [sic]. This evidence was not previously available to the applicant or his lawyers.

(2)The applicant has been suffering from a psychotic mental illness that has impaired his ability to prosecute legal actions. He has been under psychiatric care since his conviction and had [sic] been on anti psychotic medication since his conviction. It is only recently that his mental processes have improved enough for him to have regained memory of the events surrounding the death of Mrs Chan and for him to be able to commence legal action."

At the time of his trial the applicant was a qualified medical practitioner. The deceased was a patient. The evidence at trial accepted by the jury was that she died from a large morphine overdose administered by Mr McGrane. New material on which he seeks to rely is contained in his own affidavits.

Based on his study of medical papers, he contends that as there were no morphine glucuronides present in the deceased's blood at the post mortem, death must have occurred within five minutes of him injecting her with morphine. He then refers to other papers and experts to argue that respiratory arrest was therefore unlikely to be the cause of death. He claimed the dose of morphine administered to the deceased was 20 milligrams. She weighed 51 kilograms. He claims the serum morphine level found in the deceased's blood at post mortem examination was not consistent with him being responsible for the death by morphine injection.

He expresses the opinion that the cause of death was probably an anaphylactic reaction to the morphine, resulting in cardiac arrest. He also opines that he currently suffers from a psychotic illness, and was suffering psychotic symptoms on the occasion of the home visit, during which the deceased died. He now swears to an account of events leading to the deceased's death, which differs from that which he gave at trial.

He states that his illness is the reason for his delay in making the present applications, which, as I have noted, are many years late. He has sworn that his psychotic symptoms are exacerbated by stress, and he has only recently improved sufficiently to analyse his case.

The evidence Mr McGrane now wants to raise for the first time could have been raised at his trial, or on his appeal. But, in any case, the unsurmountable difficulty for him is that he has already had his appeal to this Court, so that any extension of time or the calling of further evidence would be futile. This Court has no jurisdiction to reopen his appeal which was heard and finally determined long ago: see Grierson v The King (1938) 60 CLR 431.

The present case is not in that very limited category of cases identified in R v Pettigrew [1997] 1 Qd R 601, where s 8(1), Supreme Court of Queensland Act 1991 (Qld) was invoked to reconsider an interlocutory order based on a factual misapprehension shared by the parties and the court: compare Elliot v The Queen [2007] HCA 51, [30] – [32].

Any appeal from this Court's order dismissing Mr McGrane's appeal against conviction must be to the High Court of Australia. It follows that the application for an extension of time to appeal and the application to adduce further evidence must both be refused.

FRASER JA: I agree.

I would add that the applicant relied upon an extract from the judgment of Justice Fitzgerald in R v Pettigrew, [1997] 1 Qd R 601, in which his Honour observed that:

"The Supreme Court of Queensland also has power to grant ‘appropriate relief’ when facts arise after the giving of a judgment or making of an order which entitles a person against whom the judgment or order is given or made to be relieved from it, or when facts are discovered after the giving of a judgment or making of an order which, if discovered in time, would have entitled the party against whom the judgment or order is given or made to a judgment or decision in the party's favour."

That was an extract from order 45, rule 1, of the then Rules of the Supreme Court. As is clear from his Honour's judgment, it was a reference to matters in the civil jurisdiction of the Court, not to matters heard in the criminal jurisdiction of the Court.

I also agree with the President, that Grierson and the Queen, (1938) 60 CLR 431, decides that there is no jurisdiction to hear a second appeal. That was a decision concerning the then New South Wales Court of Criminal Appeal, but the same view has been adopted in many decisions of this Court, some of which are collected in R v Nudd, [2007] QCA 40.

I would respectfully adopt the observation made by the Chief Justice in R v Nudd that attempts to revisit the merits of a conviction in such a case should “peremptorily be nipped in the bud, and not encouraged by any suggestion that the Court may, nevertheless, be prepared to re-look at the merits, even if in summary fashion.”

It would be futile to grant the applicant an extension of time in which to appeal because the Court has no jurisdiction to hear the appeal. I agree with the orders proposed by the President.

MULLINS J: I also agree with the President, and with the further observations of Justice Fraser.

THE PRESIDENT: The orders are that both applications are refused.