Mulcahy v The Queen

[2012] ACTCA 3

RICHARD MULCAHY v THE QUEEN
[2012] ACTCA 3 (31 January 2012)

CRIMINAL LAW – appeal and new trial – appellant convicted of assault occasioning actual bodily harm – whether appellant acted in self-defence – whether verdict unsafe and unsatisfactory – whether trial judge erred in use of prior inconsistent statements – consideration of s 60 of the Evidence Act 1995 (Cth) – appeal dismissed

Evidence Act 1995 (Cth) ss 60, 136

M v The Queen (1994) 181 CLR 487

Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645

Lee v The Queen (1998) 195 CLR 594

R v Welsh (1996) 90 A Crim R 364

Quick v Stoland Pty Ltd (1998) 87 FCR 371

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 38 of 2010
No. SCC 364 of 2008

Judges:        Refshauge, Burns and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:           31 January 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 38 of 2010
  )          No. SCC 364 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RICHARD MULCAHY

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Refshauge, Burns and Lander JJ
Date:  31 January 2012 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 38 of 2010
  )          No. SCC 364 of 2008
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RICHARD MULCAHY

Appellant

AND:THE QUEEN

Respondent

Judges:  Refshauge, Burns and Lander JJ
Date:  31 January 2012 
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The appellant appeals against a conviction for assault occasioning actual bodily harm on Mr Gerhard.  The conviction was entered on 7 September 2010 following reasons published on 26 August 2010 by the trial judge.  The trial was a trial by judge alone.  The appellant was sentenced to enter into a good behaviour bond for a period of 12 months.  There is no complaint about the sentence.

1. The grounds of appeal are:

(1)       The decision to convict was unsafe and unsatisfactory.

(2)The decision to convict was against the evidence and the weight of the evidence.

(3)The learned trial Judge failed to take into account relevant matters namely:

(a)The injuries caused to the Appellant

(b)The cross-examination of Robert Mackey

(c)The fact that Scott Mackey did not see:

(i)The whole of the incident

(ii)Nicholas Gerhard approach the Appellant

(4)The complete evidence of Dr Andrew Black and Dr Stephen McGowan.

1. Ground (4) does not make sense if it is considered as a free-standing ground.  However, we think it is meant to be a further particular of Ground (3), and we have treated it as that.  We have assumed that the complaint is that the trial judge failed to take into account the complete evidence of Dr Black…