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Mencarious v R

Mencarious v R

Case [2008] NSWCCA 237 14 October 2008

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Reported Decision: 189 A Crim R 219

New South Wales

Court of Criminal Appeal

CITATION: Mencarious v R [2008] NSWCCA 237

HEARING DATE(S): 10 July 2008

JUDGMENT DATE:
14 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; James J at 111; Fullerton J at 112

DECISION: 1. The appeal against conviction dismissed.
2. Gant leave to appeal the sentence but dismiss appeal.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Murder – Whether necessary for trial judge to detail defence case in summing-up – Whether trial judge misstated evidence as to cause of death – Whether trial judge in error in not leaving self-defence and provocation to jury – Not necessary to direct on a particular issue unless raised by the evidence – Whether trial judge failed to properly direct the jury in relation to accident – Distinction between accident and relevant intention – Application of Rule 4 Criminal Appeal Rules – Application of Proviso - CRIMINAL LAW – Appeal against sentence – Whether sentencing judge erred in setting standard non-parole period

LEGISLATION CITED: Criminal Procedure Act 1986
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Bingapore (1975) 11 SASR 469 at 480
Domican v The Queen (1992) 173 CLR 555
Douglass v R [2005] NSWCCA 419
Evans and Gardiner (No 2) [1976] VR 523
Fingleton v R [2005] HCA 34; (2005) 216 ALR 474; 79 ALJR 1250
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Hallett (1969) SASR 141
Holmes v DPP (1946) AC 588 at 597
Kwaku Mensah v The King [1946] AC 83
Mancini v DPP [1942] AC 1
MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
Moffatt v R [2000] NSWCCA 174; (2000) 112 A Crim R 201
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
Osland (1998) 159 ALR 170 at 174
Papakosmas v The Queen [1999] HCA 37, (1999) 196 CLR 297
Parker v The Queen (1964) 111 CLR 665 at 681-682
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v B, MA [2007] SASC 384; (2007) 99 SASR 384
R v Dudko (2002) 132 A Crim R 371
R v Galea [2004] NSWCCA 227; (2004) 148 A Crim R 220
R v Gulliford (2004) 148 A Crim R 558
R v Park [2003] NSWCCA 203
R v Piazza (1997) 94 A Crim R 459
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Zorad (1990) 19 NSWLR 91 at 105; 47 A Crim R 211 at 225
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Smith [1959] 2 QB 35; (195) 42 Cr App R 121
Stevens v R [2005] HCA 65; (2005) 227…

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 Mencarious v R

Details

AGLC: Mencarious v R [2008] NSWCCA 237
Case: [2008] NSWCCA 237
Decision Date: 14 October 2008

CaseChat Overview and Summary

The appellant, Mencarious, was convicted of murder and appealed against both his conviction and sentence. The appeal was heard by the High Court of Australia. The primary issue was whether the trial judge erred in several respects during the summing up to the jury, which included failing to detail the defence case, misstating evidence, and not leaving self-defence and provocation to the jury. The appellant also argued that the trial judge failed to properly direct the jury in relation to the concept of accident and the distinction between accident and relevant intention. Additionally, the appeal contested the sentence imposed, arguing that the sentencing judge erred in setting the standard non-parole period.

The court examined the trial judge's directions to the jury and concluded that it was not necessary to direct on a particular issue unless it was raised by the evidence. The court found that the trial judge did not err in failing to detail the defence case in the summing up. Regarding the misstatement of evidence, the court determined that any errors were not significant enough to affect the fairness of the trial. The court also held that the trial judge did not err in not leaving self-defence and provocation to the jury, as these were not supported by the evidence. In relation to the concept of accident, the court found that the trial judge's directions were adequate and that any distinction between accident and relevant intention was appropriately addressed.

The High Court held that the trial judge did not err in the manner in which he directed the jury, and therefore the conviction was upheld. The court also found that the sentencing judge did not err in setting the standard non-parole period, and thus the sentence was affirmed. The appeal was dismissed in its entirety.

Orders