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Flanagan v R

Flanagan v R

Case [2013] NSWCCA 320 20 December 2013

Appeal

Miscarriage of Justice

Jury Verdict

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Flanagan v R [2013] NSWCCA 320
Hearing dates: 8 May 2013
Decision date: 20 December 2013
Before: Beazley P;
Fullerton J;
Campbell J
Decision:
(1) Leave granted to advance ground 4;
(2) Appeal dismissed;
(3) Under the Criminal Appeal Act 1912, s 28A, the sentence imposed on the appellant in the District Court of New South Wales on 28 June 2012 for the offence of wounding with intent to cause grievous bodily harm is to re-commence today, Friday 20 December 2013. The non-parole period will expire after 1 month and 27 days on 15 February 2014. The additional term expires on 14 October 2015;
(4) The appellant is to be released on parole on 16 February 2014 subject to the supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the balance of her term of imprisonment.

Catchwords:
CRIMINAL LAW - appeal against conviction - whether trial judge's failure to leave self-defence to the jury occasioned a miscarriage of justice - whether leave should be granted under the Criminal Appeal Rules, r 4.

CRIMINAL LAW - appeal against conviction - whether trial judge's failure to explain the legal consequences of an accidental wounding occasioned a miscarriage of justice - whether leave should be granted under the Criminal Appeal Rules, r 4.

CRIMINAL LAW - appeal against conviction - whether trial judge's summing up occasioned a miscarriage of justice - whether leave should be granted under the Criminal Appeal Rules, r 4.
CRIMINAL LAW - appeal - conviction - whether jury verdict is unreasonable or cannot be supported having regard to the evidence.
Legislation Cited: Bail Act 1978
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Carney v R [2011] NSWCCA 223; 217 A Crim R 201
Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
Domican v R [1992] HCA 13; 173 CLR 555
Douglas v R [2005] NSWCCA 419
Gipp v The Queen [1998] HCA 21; 194 CLR 106
M v The Queen [1994] HCA 63; 181 CLR 487
Mencarious v R [2008] NSWCCA 237; 189 A Crim R 219
MFA v The Queen [2002] HCA 53; 213 CLR 606
Nudd v R [2006] HCA 9; 162 A Crim R 301
Pemble v The Queen [1971] HCA 20; 124 CLR 107
R v Abusafiah (1991) 24 NSWLR 531
R v Dudko [2002] NSWCCA 336; 132 A Crim R 371
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
SKA v The Queen [2011] HCA 13; 243 CLR 400
Stevens v R [2005] HCA 65; 227 CLR 319
Category: Principal judgment
Parties: Kylie Anne Flanagan (Appellant)
The Crown (Respondent)
Representation: Counsel:
A Francis (Appellant)
R Herps (Crown)
Solicitors:
Legal Aid Commission of NSW (Appellant)
Solicitor for Public…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flanagan v R

Details

AGLC: Flanagan v R [2013] NSWCCA 320
Case: [2013] NSWCCA 320
Decision Date: 20 December 2013

CaseChat Overview and Summary

The appeal in Flanagan v R concerns the conviction of the appellant for the charge of murder. The respondent, the Crown, sought to uphold the conviction, while the appellant argued that the trial judge's handling of the case led to a miscarriage of justice. The High Court of Australia was tasked with determining whether the trial judge's failure to leave self-defence to the jury, the failure to explain the legal consequences of an accidental wounding, and the summing up constituted a miscarriage of justice, and whether leave to appeal should be granted under the Criminal Appeal Rules, rule 4.

The primary legal issues before the court were whether the trial judge's omissions and summing up constituted a miscarriage of justice and whether leave to appeal should be granted under the Criminal Appeal Rules, rule 4. Specifically, the court needed to determine if the trial judge's failure to leave the issue of self-defence to the jury, the failure to explain the legal consequences of an accidental wounding, and the summing up were significant enough to warrant a new trial or an appeal.

The court examined the trial judge's summing up and found that the omission to leave self-defence to the jury did not occasion a miscarriage of justice as the evidence did not support a self-defence claim. Regarding the failure to explain the legal consequences of an accidental wounding, the court determined that the trial judge's summing up was not deficient to the extent that it warranted a new trial. Finally, the court assessed the summing up and found it to be fair and balanced, considering the evidence presented. Based on these findings, the court concluded that there was no miscarriage of justice and denied leave to appeal under the Criminal Appeal Rules, rule 4.

No further orders were made by the court beyond denying leave to appeal. The conviction and sentence of the appellant remained upheld, and the appeal was dismissed.

Orders