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Mulligan (a pseudonym) v The Queen

Mulligan (a pseudonym) v The Queen

Case [2017] VSCA 94 2 May 2017

Appeal

Conviction

Sentencing

Miscarriage of Justice

Jury Directions

Post-offence Conduct

Cumulativity of Sentences

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0068

AARON MULLIGAN (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	REDLICH, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2017
DATE OF JUDGMENT:	2 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 94
JUDGMENT APPEALED FROM:	DPP v [Mulligan] (Unreported, County Court of Victoria, Judge Gamble, 21 September 2015 (Conviction); 17 March 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Rape, intentionally causing injury, making threat to kill and false imprisonment – Charges relating to two complainants – Evidence not cross-admissible – Joint trial conducted despite risk of prejudice – Whether failure to sever led to miscarriage of justice – Whether trial counsel ‘flagrantly incompetent’ – TKWJ v The Queen (2002) 212 CLR 124, Knowles (a pseudonym) v The Queen [2015] VSCA 141, Nicholls v The Queen [2016] VSCA 250, Patel v The Queen (2012) 247 CLR 531 discussed – Whether trial judge’s directions sufficient to ‘cure’ potential prejudice – No obligation to direct jury as to each piece of evidence as against each charge/complainant – Distress evidence not ‘intractably neutral’ merely because it supports multiple hypothesises – Post-offence conduct admissible as supporting inference of awareness of guilt – R v Ciantar (2006) 176 A Crim R 504 and R v Mocenigo [2014] VSCA 231 distinguished – No forensic disadvantage direction required despite one being sought at trial – Jury’s verdict on charge 3 not ‘unsafe and unsatisfactory’ – R v Ferguson (2009) 24 VR 531 applied – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 13 years and 4 months’ imprisonment with a 10 year non-parole period – Whether individual sentences and total effective sentence manifestly excessive – Individual sentences within range that was reasonably open – Cumulation between charges 3 and 4 and on charge 7 manifestly excessive – Leave to appeal granted, appeal allowed, sentences set aside – Applicant resentenced to 11 years and four months’ imprisonment with non-parole period of eight years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Johns	Theo Magazis & Associates
For the Crown	Mr B Kissane QC with Ms S K Borg	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA
PRIEST JA:

Convictions, sentences and grounds of appeal

Following a trial in the County Court, on 21 September 2015 a jury convicted the applicant of rape[2] (three charges — charges 3, 4 and 7), intentionally causing injury[3] (two charges — charges 1 and 5), making a threat to kill[4] (one charge — charge 8) and false imprisonment[5] (one charge — charge 9). The offending involved two complainants, ‘MG’ and ‘ST’, and three separate occasions, being 6 November and 2 December 2012 (MG), and 21 September 2013 (ST).
[2]Crimes…

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 Mulligan (a pseudonym) v The Queen

Details

AGLC: Mulligan (a pseudonym) v The Queen [2017] VSCA 94
Case: [2017] VSCA 94
Decision Date: 2 May 2017

CaseChat Overview and Summary

The case of Mulligan v The Queen involved an appeal against both the conviction and sentence arising from a criminal trial. The applicant, referred to as Mulligan, was convicted of multiple serious offences including rape, intentionally causing injury, making a threat to kill, and false imprisonment. The charges related to two separate complainants, and the trial was conducted jointly despite the risk of prejudice due to the nature of the evidence. Mulligan appealed both the conviction and the sentence, arguing that the joint trial had led to a miscarriage of justice, and that the total effective sentence of 13 years and 4 months with a 10-year non-parole period was manifestly excessive.

The court was required to determine whether the trial judge's decision to conduct a joint trial led to a miscarriage of justice, and whether the trial counsel's conduct was so deficient as to warrant a finding of flagrant incompetence. Additionally, the court needed to assess whether the trial judge's directions to the jury were sufficient to mitigate any potential prejudice from the joint trial. The court also examined the sentences imposed, considering whether they were manifestly excessive in light of the totality of the offences and the principles of sentencing.

In rejecting the appeal against conviction, the court found that the trial judge's directions to the jury were adequate to address potential prejudice from the joint trial. The court held that it was not necessary to direct the jury on each piece of evidence as it related to each charge or complainant, and that the evidence was not so neutral that it could not support a conviction. The court also dismissed the claim that trial counsel was flagrantly incompetent, finding that the counsel's performance was within the range of competence expected. Regarding the sentence, while the court found that some aspects of the cumulation were excessive, it did not consider the total effective sentence to be manifestly excessive. However, the court allowed the appeal on the basis of the excessive cumulation between certain charges, reducing the sentence to 11 years and four months with a non-parole period of eight years.

The court's final orders included a refusal of leave to appeal against conviction, an allowance of the appeal against sentence, and a resentencing of the applicant to 11 years and four months’ imprisonment with a non-parole period of eight years. This decision reflects a nuanced approach to the issues of joint trials, legal representation, and sentencing, balancing the rights of the accused with the need to provide justice for the victims.

Orders