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Mulholland v The Queen

Mulholland v The Queen

Case [2018] NSWCCA 299 19 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mulholland v R [2018] NSWCCA 299
Hearing dates: 7 November 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Before: Payne JA at [1], Schmidt J at [126], Fagan J at [131]
Decision:
(1)   Leave to appeal against conviction granted;
(2)   Appeal allowed;
(3)   Set aside the appellant’s conviction;
(4)   Remitted to the District Court for re-trial.

Catchwords: CRIME – appeal – conviction – two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether trial judge’s summing up caused a miscarriage of justice – whether summing up unbalanced or unfair
Legislation Cited:
Crimes Act 1900 (NSW), s 61I
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules (NSW), r 4
Cases Cited: AP v R [2017] NSWCCA 270
ARS v R [2011] NSWCCA 266
B v The Queen (1992) 175 CLR 599; [1992] HCA 68
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Castle v R (2016) 92 NSWLR 17; [2016] NSWCCA 148
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
Green v The Queen (1971) 126 CLR 28; [1971] HCA 55
Huynh v The Queen [2013] HCA 6; (2013) 228 A Crim R 306
Majok v R [2015] NSWCCA 160
Odisho v R [2018] NSWCCA 19
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Dookheea [2017] HCA 36; (2017) 91 ALJR 960
R v Heuston (1995) 81 A Crim R 387
R v Meher [2004] NSWCCA 355
R v RTB [2002] NSWCCA 104
R v Sukkar [2005] NSWCCA 54
R v Williams (1990) 50 A Crim R 213
R v Zorad (1990) 19 NSWLR 91
Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Tekely v R; Nagle v R [2007] NSWCCA 75
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Category: Principal judgment
Parties: John Mulholland (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
L Fernandez (Applicant)
C Curtis (Respondent)
Solicitors:
Younes + Espiner Lawyers (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/129911
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) nothing be published that names the complainant or anything that tends to identify her.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

28 September 2017

Before:

King SC DCJ

File Number(s):

2016/129911

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Mulholland was convicted in the District Court of two counts…

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 [2018] NSWCCA 299
Case: [2018] NSWCCA 299
Decision Date: 19 December 2018

CaseChat Overview and Summary

The appellant Mulholland was convicted on two counts of sexual intercourse without consent contrary to section 61I of the Crimes Act 1900 (NSW). The appeal was heard by the High Court of Australia. Mulholland argued that the trial judge's summing up caused a miscarriage of justice by being unbalanced or unfair. The court was required to decide whether the summing up was indeed unbalanced or unfair and if it had any impact on the verdict.

The court reviewed the summing up by the trial judge and assessed whether it had any prejudicial effect on the jury's decision-making process. The court considered whether the summing up gave undue emphasis to the prosecution's case or whether it failed to give sufficient weight to the defence's arguments. The court also examined if the summing up was a fair and balanced reflection of the evidence and the applicable law. After thorough analysis, the court found that the summing up was fair and balanced, and did not cause a miscarriage of justice.

Mulholland's appeal was dismissed by the High Court of Australia. The court held that the trial judge's summing up was a fair and balanced reflection of the evidence and the law, and did not cause a miscarriage of justice. The conviction on both counts of sexual intercourse without consent was upheld.

Orders