M.A.H. v Regina; Regina v M.A.H. [2006] NSWCCA 226
HEARING DATE(S):
13 June 2006
JUDGMENT DATE:
27 July 2006
JUDGMENT OF:
Grove J at 1; Hidden J at 87; Kirby J at 88
DECISION:
CONVICTION APPEAL DISMISSED; CROWN APPEAL DISMISSED; APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED
CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - MURDER - DIRECTIONS TO JURY ON MOTIVE - MOTIVE NOT RELIED ON AS PROOF OF GUILT BUT IN SUPPORT OF TESTIMONY OF ACCOMPLICE - NO ERROR SHOWN - LEAVE TO CROSS EXAMINE WITNESS NOT MAKING GENUINE ATTEMPT TO GIVE EVIDENCE - FINDING BY TRIAL JUDGE - NO REQUIREMENT OF CONTEMPORANEITY BETWEEN EVENTS AND MAKING OF STATEMENT UPON WHICH WITNESS CROSS EXAMINED - DIRECTIONS ON TELLING OF LIES NOT ERRONEOUS - SENTENCE - OFFENDER AND VICTIM BOTH AGED 17 - ASSESSMENT WITHIN DISCRETIONARY RANGE
Adams v The Queen 2001 207 CLR 96 De Gruchy v The Queen 2002 211 CLR 85 Lowe v The Queen 1984 154 CLR 606 M. v The Queen 1984 181 CLR 487 Penney v The Queen 1998 72 ALJR 1316 R v Mungomery 2004 151 A Crim R 376 R v Pantoja NSWCCA, unrep. 5 November 1998 R v Previtera 1997 97 A Crim R 76 R v Simpson 2001 NSWLR 704 The Queen v Olbrich 1999 199 CLR 270 Zoneff v The Queen 2000 200 CLR 234
PARTIES:
M.A.H. v Regina; Regina v M.A.H.
FILE NUMBER(S):
CCA 2006/727; 2005/1866
COUNSEL:
D. Woodburne (Crown/Appellant in 1866) D. Campbell SC with S. Longhurst (Res/Apt in 727)
SOLICITORS:
S. Kavanagh (DPP) Williamson Isabella Lawyers (Appellant)
1 GROVE J: Before the Court is, first, an appeal against conviction for murder following trial before Hislop J and a jury. His Honour sentenced the appellant to imprisonment for a total term of twenty two years with a non parole period of sixteen and a half years. A Crown appeal asserting the manifest inadequacy of that sentence and an application for leave to appeal against severity of sentence (in the alternative to the appeal against conviction) by the appellant, are the second matters.
2 The deceased, a youth aged seventeen years (ST) was last seen alive, other than by his killers, on Saturday 21 October 2000. On that day he had attended employment at a shop and his mother collected him at 4.30 pm. After arriving home, he changed some clothing and told his mother that he was going to Mount Keira and would call, on his mobile phone, to let her know if he would be back in time for tea. He told her that he…
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.
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AGLC
MAH v R [2006] NSWCCA 226
Case
[2006] NSWCCA 226
Decision Date
CaseChat Overview and Summary
The case of MAH v R involved a dispute over the conviction of the appellant for murder. The matter was heard in the High Court of Australia. The appellant was convicted of the murder of another individual, and the central issue was whether the trial judge had erred in directing the jury on the aspect of motive. The appellant argued that the trial judge's direction implied that motive could be used as proof of guilt, which was not the case. However, the court held that the direction was given in the context of supporting the testimony of an accomplice, and no error was shown in this regard.
Additionally, the appellant contested the trial judge's refusal to allow cross-examination of a witness who was alleged to have lied. The court considered whether the trial judge's finding that the witness was not making a genuine attempt to give evidence was correct. The court held that there was no requirement for contemporaneity between the events and the making of the statement upon which the witness was cross-examined. Furthermore, the court found that the trial judge's direction on telling lies was not erroneous. Lastly, the court examined the sentence imposed on the appellant, who was 17 years old at the time of the offence, as was the victim. The court considered the appropriate sentence in light of the circumstances and the age of the parties involved.
The High Court found that no errors were made in the trial judge's directions to the jury, the refusal to allow cross-examination of the witness, or the direction on telling lies. The court affirmed the conviction and sentence of the appellant, finding that the trial judge had acted correctly in all respects. The final orders of the court were to dismiss the appeal and affirm the conviction and sentence.