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Mainwaring v The Queen

Mainwaring v The Queen

Case [2009] NSWCCA 207 20 August 2009

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New South Wales
Court of Criminal Appeal

CITATION: Mainwaring v Regina [2009] NSWCCA 207

HEARING DATE(S): 12 June 2009

JUDGMENT DATE:
20 August 2009

JUDGMENT OF: Allsop P at 1; Price J at 66; Harrison J at 67

DECISION: 1. Appeal against conviction dismissed.
2. Grant leave to appeal on sentence.
3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction – perjury - Crimes Act 1900 (NSW) s 327 - appellant gave evidence in murder trial of person who had shared a prison cell with while in remand – evidence given by the appellant that shoes removed from the cell were his shoes and not those of the person accused of the murder – later covert recording of appellant telling undercover policeman that he said the shoes were his when he did not know whose shoes they were – whether open to trial judge to conclude on the evidence that the evidence given in the murder trials was objectively false – whether trial judge misdirected himself by failing to consider the possibility of mistake - verdict was unreasonable and inconsistent with the evidence – appeal dismissed - CRIMINAL LAW - appeal sentence conviction – perjury – failure to take into account mitigating factors - leave to appeal granted – sentences within sentencing judge’s discretion and not manifestly excessive - appeal dismissed - Crimes Act 1900 (NSW) – s 327

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)

CATEGORY: Principal judgment

CASES CITED: Fleming v R [1998] HCA 68; 197 CLR 250
MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
R v Fish & Swan [2002] NSWCCA 196; 131 A Crim R 172
R v Langton [2002] NSWCCA 382
R v Liristis [2004] NSWCCA 287; 146 A Crim R 547
R v Morgan (1993) 70 A Crim R 368
R v Treglia [2002] NSWCCA 338

PARTIES: Daryl Mervyn Mainwaring
The Crown

FILE NUMBER(S): CCA 4851/2007

COUNSEL: John Stratton SC (Appellant)
D Arnott SC (Crown)

SOLICITORS: Peter Katsoolis (Appellant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0370

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 21 June 2007 (Judgment)
21 September 2007 (Sentencing)

4851/2007

ALLSOP P
PRICE J
HARRISON J
Thursday 20 August 2009

DARYL MERVYN MAINWARING v REGINA

HEADNOTE

The appellant shared a prison cell while with a person accused of a murder in remand. As part of the murder investigation shoes were removed from the cell for analysis by a forensic podiatrist. The analysis of shoes was of forensic importance to the expert evidence as a shoe had been left at the murder scene.

The appellant testified at the murder trial that the shoes removed from the cell were his shoes, and not those of the cellmate. The appellant’s cellmate was acquitted of the murder charge.

After the conclusion of the murder trials the appellant was legally recorded by a covert police operative saying that he had…

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 Mainwaring v The Queen

Details

AGLC: Mainwaring v The Queen [2009] NSWCCA 207
Case: [2009] NSWCCA 207
Decision Date: 20 August 2009

CaseChat Overview and Summary

The appellant, Mainwaring, was convicted of perjury and appealed against both his conviction and sentence. The perjury conviction arose from evidence he gave during the murder trial of a cellmate, where he claimed shoes removed from their shared cell were his and not those of the accused. However, a covert recording captured Mainwaring admitting to an undercover officer that he lied, stating he did not know whose shoes they were. The primary legal issue was whether the trial judge could properly conclude that Mainwaring's testimony was objectively false and whether the trial judge erred by not considering the possibility of an honest mistake. The court found that the trial judge's conclusion was open to him based on the evidence presented, and the verdict was not unreasonable or inconsistent with the evidence, leading to the dismissal of the appeal against conviction.

The appeal against sentence concerned whether the trial judge failed to take into account mitigating factors. The court found that the sentences imposed were within the sentencing judge's discretion and not manifestly excessive. The appellant's contention that the judge did not adequately consider mitigating factors was rejected, as the judge had considered them and still deemed them insufficient to warrant a lesser sentence. The appeal against sentence was dismissed, and the convictions and sentences were upheld.

The court concluded that the trial judge's findings were supported by the evidence, and the verdict was reasonable. The sentencing judge appropriately considered the mitigating factors but determined that they did not warrant a lesser sentence. The appeal was dismissed, and Mainwaring's convictions and sentences were upheld.

Orders