Mitchell v The Queen - [2021] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mitchell v R [2021] NSWCCA 143
Hearing dates: 2 June 2021
Date of orders: 7 July 2021
Decision date: 07 July 2021
Before: Harrison J at [1]
Bellew J at [2]
Cavanagh J at [58]
Decision:
(1) The appeal against conviction is dismissed.

Catchwords:
CRIMINAL LAW – Offences – Appeal against conviction – Where appellant convicted of aggravated break and enter and discharging a firearm – No issue at trial as to the commission of the offences – Sole issue whether the Crown had established beyond reasonable doubt that it was the appellant who was responsible – Where observations were made by several witnesses of the person at the time of the offending – Observations inconsistent as to the person’s skin colour and other characteristics – Where there were a series of other circumstances which the jury were entitled to take into account in concluding that the Crown had established its case beyond reasonable doubt – Necessity to consider a circumstantial case as a whole and not in a piecemeal fashion – Strong case against the appellant – Evidence not lacking in probative value – Open to the jury to find the offences proved beyond reasonable doubt – Appeal against convictiondismissed.

Cases Cited:
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Mitchell [2020] NSWDC 293
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

Category: Principal judgment
Parties: Richard Mitchell – Appellant
Regina – Respondent
Representation:
Counsel:
S Kluss – Appellant
M Kumar – Respondent
Solicitors:
Ross Hill & Associates, Solicitors – Appellant
Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2018/272488
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 293

Date of Decision:

5 March 2020

Before:

His Honour Judge Haesler SC DCJ

File Number(s):

2018/272488

Judgment

HARRISON J: I agree with Bellew J. It was clearly open to the jury, having regard to the whole of the evidence, to be satisfied of Mr Mitchell’s guilt. As is well recognised, the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, or whether the jury must have entertained a doubt about Mr Mitchell’s guilt. Having reviewed the evidence in detail, in no sense do I consider that it would be dangerous in all the circumstances to allow the guilty verdict to stand.
BELLEW J: On 29 October 2019, Richard Anthony Mitchell (the appellant) pleaded not guilty to an indictment alleging the following offences:

on the first day of August 2017, at Warilla in the…

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 Mitchell v The Queen

Details

AGLC: Mitchell v The Queen [2021] NSWCCA 143
Case: [2021] NSWCCA 143
Decision Date: 07 July 2021

CaseChat Overview and Summary

The appellant was convicted of aggravated break and enter and discharging a firearm and sought to appeal against his conviction. The appeal raised no issue as to the commission of the offences, rather it was whether the Crown had proven beyond reasonable doubt that it was the appellant who was responsible for the offences. The appellant submitted that the observations made by witnesses of the person at the time of the offending were inconsistent as to the person's skin colour and other characteristics, and that there were other circumstances which did not support the conclusion that the Crown had established its case beyond reasonable doubt. The court held that the evidence needed to be considered as a whole and not in a piecemeal fashion. The court found that there was a strong case against the appellant and that the evidence was not lacking in probative value. The jury was open to finding the offences proved beyond reasonable doubt, and the appeal against conviction was dismissed.

The court emphasised the importance of considering a circumstantial case as a whole and not in a piecemeal fashion. It noted that the observations made by witnesses were inconsistent as to the person's skin colour and other characteristics, but that there were other circumstances which the jury were entitled to take into account in concluding that the Crown had established its case beyond reasonable doubt. The court held that the evidence was not lacking in probative value and that it was open to the jury to find the offences proved beyond reasonable doubt. The court further noted that it was necessary to consider the evidence in its entirety, and that the appeal against conviction was dismissed as there was a strong case against the appellant.

The court's decision highlights the importance of considering all evidence presented in a case, rather than focusing on individual pieces of evidence in isolation. The court found that the evidence, when considered as a whole, was sufficient to prove the appellant's guilt beyond reasonable doubt. The court also emphasised the importance of a strong case against the appellant, which contributed to the decision to dismiss the appeal against conviction.

No specific orders were made by the court in this case. The appeal against conviction was dismissed, and the appellant's convictions for aggravated break and enter and discharging a firearm were upheld.

Orders