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- The “Abdul test” of substantial injustice in cases asserting a Muldrock error – Kentwell v The Queen (2014) 88 ALJR 947;  HCA 37 and O’Grady v The Queen (2014) 88 ALJR 960;  HCA 38
Updated 17 November 2014
The “Abdul test” of substantial injustice in cases asserting a Muldrock error
Both cases questioned the approach of the Court of Criminal Appeal on an appeal against sentence – whether a test of substantial injustice necessary for the appellant to demonstrate when there has been delay in lodging the appeal particularly in a case asserting a Muldrock error
Issues: In a NSW Court of Criminal Appeal’s decision, Abdul v The Queen  NSWCCA 247, the Court formulated a test to be applied for the determination of an application to extend time within which to apply for leave to appeal against a sentence on the ground asserting a Muldrock error. Muldrock was a case in which the High Court determined that the NSW Court of Criminal Appeal’s approach to sentencing offences for which a standard non-parole period applied was flawed. As a consequence, many sentences imposed from 2004 till 2011 when Muldrock was decided stood to be potentially reviewed on appeal. It was in that context that the decision in Abdul was made.
The test formulated in Abdul was stated at  and noted that the Court, in considering an application to extend time in which to apply for leave to appeal, “all relevant factors need to be considered – 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.” Both cases challenged the test in Abdul.
Facts: Both appellants sought leave to appeal their sentences and leave to extend time in which to file an application for leave to appeal. Both appellants were charged with offences for which there was a standard non-parole period that applied to their sentence. In Kentwell, it was held that the sentencing judge used the standard non-parole period as a starting point, which was erroneous. In O’Grady, the respondent in the appeal conceded that the sentencing judge made a Muldrock error.
Held: The High Court held in each case that Abdul was wrongly decided. In Abdul, the Court of Criminal Appeal relied on English authority when an applicant attempted to re-open a conviction in consequence of a subsequent legal authority or due to some change of the state of the law. The High Court found that the Court of Criminal Appeal’s reliance on this English authority was misplaced. “The interests of justice in the review of a sentence that has been imposed upon wrong sentencing principle and that is still being served are to be distinguished from the interests of justice in the review of a stale conviction.” ( – Kentwell). “Abdul was wrongly decided. It was an error to introduce in applications for an extension of time based on asserted “Muldrock error” consideration of whether refusal of the application would occasion substantial injustice.” ( – Kentwell) The Court found that the sole test to be applied to an application to extend time is what the interests of justice require in the particular case.
With regard to the application for leave to appeal the sentence, including in cases alleging a Muldrock error, the Court said, “When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit.”
When an appeal court exercises the discretion afresh, it takes into account the full range of factors including the evidence of the appellant’s progress in custody and current mental state to determine whether a lesser sentence is warrant in law.
Result: In each case, the matters were referred back to the Court of Criminal Appeal to be decided in accordance with law.
Comments: There are potentially very many cases alleging Muldrock error still to be decided that may be affected as a result of these decisions. It would also appear that many concluded appeals might now need to be reviewed. This is likely to place significant additional burden on the Court of Criminal Appeal in the coming year.
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