McGee v R [1907] HCA 16; (1907) 4 CLR 1453 (22 May 1907)

HIGH COURT OF AUSTRALIA

McGee Appellant; and The King Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

22 May 1907

Griffith C.J., O'Connor, Isaacs and Higgins JJ.

Starke, for the appellant.

Griffith C.J.

The rule laid down by the Privy Council as to the kind of criminal cases in which special leave to appeal will be granted is well established, and may best be expressed by reading two or three passages from judgments of that Board. In the case of Reg. v. Bertrand[1], Sir John Coleridge, with whom were associated Lord Wensleydale and Sir Edward Vaughan Williams, delivered the opinion of the Judicial Committee, in which he said:—"The result is, that any application to be allowed to appeal in a criminal case comes to this Committee labouring under a great preliminary difficulty—a difficulty not always overcome by the mere suggestion of hardship in the circumstances of the case; yet the difficulty is not invincible. It is not necessary, and perhaps it would not be wise, to attempt to point out all the grounds which may be available for the purpose; but it may safely be said, that when the suggestions, if true, raise questions of great and general importance, and likely to occur often, and also where, if true, they show the due and orderly administration of the law interrupted, or diverted into a new course, which might create a precedent for the future; and also where there is no other means of preventing these consequences, then it will be proper for this Committee to entertain an appeal, if referred to it for its decision."

In the judgment in a previous case of Falkland Islands Co. v. The Queen[2] which was quoted in Reg. v. Bertrand[3], and was also quoted in the later case of In re Dillet[4], this passage occurs:—"It may be assumed that the Queen has authority by virtue of her prerogative to review the decisions of all colonial Courts, whether the proceedings be of a civil or criminal character, unless Her Majesty has parted with such authority. But the inconvenience of entertaining such appeals in cases of a strictly criminal nature is so great, the obstruction which it would offer to the administration of justice in the colonies is so obvious, that it is very rarely that applications to this Board similar to the present have been attended by success." In Kops v. The Queen; Ex parte Kops[5], Lord Herschell L.C. quoted with approval the following passage from In re Dillet[6], which was again quoted with approval in Ex parte Deeming[7]:—"The rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done." That rule has several times been followed by this Court.

In the present case it is suggested that a deposition by a person who was dangerously ill and was not expected to live, taken in the presence of the accused, who cross-examined the deponent, and who afterwards admitted that that deposition was true, was on technical grounds inadmissible in evidence. It is clear that that is not a case in which it appears that "substantial and grave injustice has been done." That is a sufficient reason why special leave to appeal should be refused.

O'Connor J. and

Isaacs J.

concurred.

Higgins J.

I should like to add that in Ex parte Carew[8] those cases to which the Chief Justice has referred have been followed.

Special leave to appeal refused.

Attorneys, Gaunson & Lonie, Melbourne, for Smith & Lavan, Perth.

[1] [1867] EngR 20; L.R. 1 P.C., 520, at p. 530.

[2] [1863] EngR 705; 1 Moo. P.C.C. (N.S.), 299, at p. 312.

[3] [1867] EngR 20; L.R. 1 P.C., 520.

[4] 12 App. Cas., 459, at p. 466.

[5] (1894) A.C., 650, at p. 652.

[6] 12 App. Cas., 459, at p. 467.

[7] (1892) A.C., 422, at p. 423.

[8] (1897) A.C., 719.