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McKechnie v R

McKechnie v R

Case [2006] NSWCCA 13 15 February 2006

Uncorroborated Evidence

Self-Defence

Criminal Law

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CITATION: McKECHNIE v. REGINA [2006] NSWCCA 13
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Friday 16 December 2005

JUDGMENT DATE:
15 February 2006

JUDGMENT OF: Mason P at 1; Barr J at 2; Hall J at 3

EX TEMPORE JUDGMENT DATE: 02/19/2006

DECISION: The appeal against conviction dismissed. Grant leave to the applicant to appeal in respect of the sentence imposed upon him, but dismiss the appeal.

CATCHWORDS: Criminal law - appeal against conviction and sentence - sexual assault - directions as to the use of a doctor's evidence - doctor not cross-examined - directions as to evidence of complainant and accused - complaint that trial judge's remarks diverted the jury from its fact finding task - directions of the trial judge to choose between the account of the complainant and the accused - use of rhetorical questions in addressing a jury - warning about acting on uncorroborated evidence - Murray direction - directions relating to self-defence.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: RTB [2002] NSWCCA 104
Kelleher (1971) 131 CLR 534
Coles (CCA, unreported 16 September 1993)
Gallagher (1946) 41 SASR 73
Murray (1987) 11 NSWLR 12
Longman (1989) 168 CLR 79
Burt (2003) 140 A. Crim. R. 555
BRS (1997) 191 CLR 275
Dziduch (1990) 47 A. Crim. R. 378
Veen (No. 2) (1988) 164 CLR 645
Berg (2004) 41 MVR 399
Hayes [2001] NSWCCA 358
Rushby (1977) 1 NSWLR 594
Simpson (2001) 53 NSWLR 504
Pearce (1998) 194 CLR 610

PARTIES: JOHN MICHAEL McKECHNIE v. REGINA

FILE NUMBER(S): CCA 2005/1493

COUNSEL: App: S. Kluss
Crown: G. Rowling

SOLICITORS: App: Ross Hill & Associates
Crown: S. Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/51/0045

LOWER COURT JUDICIAL OFFICER: Nield, DCJ.

2005/1493

MASON, P.
BARR, J.
HALL, J.
WEDNESDAY 15 FEBRUARY 2006

McKECHNIE, John Michael v. REGINA

Judgment

1 MASON, P: I agree with Hall, J.

2 BARR, J: I agree with Hall, J.

3 HALL, J: The appellant, John Michael McKechnie, appeals against the conviction and sentence in the District Court (Nield, DCJ.) and a jury. The trial proceeded over a number of days, between 11 and 13 August 2004 and on 16 August 2004.

4 The appellant faced two charges:-

Count 1:

Crimes Act 1900

Count 2:

Crimes Act 1900

5 On 16 August 2004, the jury returned a verdict of guilty on both counts.

6 Proceedings on sentence took place on 4 February 2005 and on 18 February 2005, the sentencing judge imposed, on each count, a term of imprisonment of 15 years to commence 6 May 2004 and to expire 5 May 2019. A non-parole period of 11 years was fixed to commence on 6 May 2004 and…

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 McKechnie v R

Details

AGLC: McKechnie v R [2006] NSWCCA 13
Case: [2006] NSWCCA 13
Decision Date: 15 February 2006

CaseChat Overview and Summary

In McKechnie v R, the appellant was convicted of sexual assault and appealed against both conviction and sentence. The case reached the court following the appellant's dissatisfaction with the trial judge's directions to the jury regarding the use of evidence from a doctor, the complainant, and the appellant himself. The appellant argued that the trial judge's comments and rhetorical questions may have unduly influenced the jury, potentially diverting them from their fact-finding role.

The legal issues before the court encompassed the adequacy of the trial judge's directions to the jury concerning the use of uncorroborated evidence, the propriety of rhetorical questions, and whether the judge's instructions to choose between the accounts of the complainant and the appellant were appropriate. Additionally, the court examined whether the trial judge's remarks about self-defence and the Murray direction were correctly applied in the context of the evidence presented.

The court meticulously reviewed the trial judge's directions and found that while some comments could be considered rhetorical, they did not improperly influence the jury's decision-making process. The judge's remarks, including the use of rhetorical questions, were not deemed to have diverted the jury from their fact-finding task. The court further held that the trial judge's directions regarding the evaluation of the complainant's and appellant's accounts, as well as the warnings about acting on uncorroborated evidence and the Murray direction, were correctly applied. The appeal against conviction and sentence was thus dismissed.

Ultimately, the court's decision confirmed the conviction and sentence imposed by the trial court. The appellant's appeal was unsuccessful, and the original judgment stood affirmed.

Orders