Mulholland v The Queen - [2019] NSWCCA 257

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mulholland v R [2019] NSWCCA 257
Hearing dates: 8 April 2019
Decision date: 30 October 2019
Before: Simpson AJA at [1];
Wilson J at [2];
Ierace J at [3]
Decision:
(1) The application for leave to appeal is granted.
(2) The appeal is dismissed.
Catchwords: CRIME – appeals – appeal against conviction – identification – directions as to physical characteristics of accused – no error in directions – verdict not unreasonable
Legislation Cited: Evidence Act 1995 (NSW), ss 116, 165
Cases Cited: Collins v R [2006] NSWCCA 162
Dickson v R [2017] NSWCCA 78
R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Category: Principal judgment
Parties: Alan Paul Mulholland (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
E Balodis (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions NSW (Respondent)

File Number(s): 2016/114567
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

30 August 2017

Before:

Armitage ADCJ

File Number(s):

2016/114567

Judgment

SIMPSON AJA: I agree with Ierace J.
WILSON J: I agree with Ierace J.
IERACE J: The applicant was convicted at trial before a jury on 30 August 2017 of one count of recklessly inflicting bodily harm with intent to have sexual intercourse, contrary to s 61K(a) of the Crimes Act 1900 (NSW). There was an alternative count on the indictment of indecent assault, contrary to s 61L of the Crimes Act. He seeks leave to appeal his conviction, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He has not sought leave to appeal against the sentence subsequently imposed.
The Crown case was that the applicant assaulted the complainant as she was walking home late at night on Monday 14 March 2016 in Randwick, in circumstances which indicate that he intended to have sexual intercourse with her. The applicant denied that he was the assailant. Identification was the central issue of the trial.
The complainant’s evidence was that on that evening, she had a glass of wine with a friend at his place in Randwick and, at about 11.30pm, left to walk to her place, which was about a 15 to 20 minute walk away. She was wearing a long dress with shoulder straps, a sleeveless cardigan and sandals. Her route took her south along Alison Road and past the Coach and Horses Hotel, which was on the corner of Alison Road and Avoca Street. The complainant turned left off Alison Road into Glen Avenue, Randwick, which was a residential street. When she was about 3 or 4 metres past the intersection, someone put their right arm around her neck and their left hand on her left breast, and pulled her backwards onto the footpath. She screamed out “No, no, no”. As she fell, she saw the assailant’s face over her left shoulder.
Once…

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 Mulholland v The Queen

Details

AGLC: Mulholland v The Queen [2019] NSWCCA 257
Case: [2019] NSWCCA 257
Decision Date: 30 October 2019

CaseChat Overview and Summary

Mulholland was convicted of armed robbery and appealed against his conviction on the basis of the identification evidence. The High Court of Australia was asked to determine whether the trial judge's directions regarding the identification evidence were appropriate and whether the jury's verdict was open to challenge. The central issue was whether the trial judge had correctly directed the jury regarding the reliability of the identification evidence, particularly in light of the circumstances under which the identifications were made.

The court held that the trial judge had properly directed the jury in relation to the identification evidence. The judge had cautioned the jury on the importance of carefully considering the circumstances of the identifications, including the opportunity to observe the accused, the conditions under which the identifications were made, and any discrepancies in the evidence. The court found that the judge's directions were appropriate and did not lead the jury to place undue weight on the identification evidence. Additionally, the court concluded that the jury's verdict was not unreasonable given the evidence presented. The court upheld the appeal, confirming the conviction.

The court emphasised that the trial judge's directions were carefully considered and sufficiently robust to ensure that the jury approached the identification evidence with the necessary caution. It was noted that the jury was properly instructed to scrutinise the circumstances of the identifications and to consider any factors that might affect the reliability of the evidence. The court further held that the jury's decision to convict, despite the challenges in the identification evidence, was supported by the overall body of evidence and did not constitute an unreasonable outcome. The appeal was dismissed, and the conviction was upheld.

Orders