(1) Extend the time for the filing of the notice of appeal and application for leave to appeal to 22 April 2016. (2) Grant the applicant leave to appeal his conviction on grounds 1 and 2 of his notice of appeal dated 22 April 2016. (3) Refuse the applicant leave to appeal his conviction on grounds 3-8 and 10 of his notice of appeal dated 22 April 2016 (noting that ground 9 was not pressed by the applicant). (4) Dismiss the appeal against conviction. (5) Grant the applicant leave to appeal against his sentence but dismiss the appeal.
Catchwords:
CRIMINAL LAW – conviction appeal – murder – where applicant claimed he did not intentionally inflict knife wounds but that deceased sustained wounds accidentally in course of struggle with applicant – whether judge erred in not leaving unlawful and dangerous act manslaughter or “second limb” of self-defence to jury where applicant did not conduct case on either of those bases – whether judge erred in not leaving provocation to jury – whether judge erred in directions on circumstantial evidence, flight as consciousness of guilt or onus and standard of proof – whether prejudicial comments or breach of rule in Browne v Dunn by prosecutor caused trial to miscarry – leave to appeal granted on two grounds – appeal against conviction dismissed
CRIMINAL LAW – sentence appeal – complaint as to failure of judge to take into account applicant’s facilitation of the administration of justice – whether judge erred in permitting and taking into account evidence of applicant’s alleged prior misconduct – whether judge erred in not taking into account applicant’s mental illness – leave to appeal against sentence granted but appeal dismissed
[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.
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AGLC
Mulvihill v R [2016] NSWCCA 259
Case
[2016] NSWCCA 259
Decision Date
CaseChat Overview and Summary
In the case of Mulvihill v R, the applicant, who was convicted of murder, sought leave to appeal against both his conviction and sentence. The applicant argued that he did not intentionally inflict the fatal knife wounds on the deceased, but rather that the wounds were sustained accidentally during a struggle. The applicant also contended that the trial judge had erred in several respects, including by not leaving the options of unlawful and dangerous act manslaughter or the "second limb" of self-defence to the jury, not allowing the jury to consider provocation, and giving certain directions on circumstantial evidence, flight as consciousness of guilt, and the onus and standard of proof. Additionally, the applicant claimed that prejudicial comments and a breach of the rule in Browne v Dunn by the prosecutor caused the trial to miscarry. The High Court granted leave to appeal on two grounds, but ultimately dismissed the appeal against conviction.
The appeal against sentence raised issues regarding the judge's failure to take into account the applicant's facilitation of the administration of justice, the judge's permitting and taking into account evidence of the applicant's alleged prior misconduct, and the judge's not taking into account the applicant's mental illness. The High Court granted leave to appeal against the sentence but ultimately dismissed the appeal.
The High Court found that the trial judge did not err in failing to leave the options of unlawful and dangerous act manslaughter or the "second limb" of self-defence to the jury, as the applicant did not conduct his case on either of those bases. The Court also found that the judge's directions on circumstantial evidence, flight as consciousness of guilt, and the onus and standard of proof did not contain any errors that would warrant a new trial. Furthermore, the Court found that there were no prejudicial comments or breaches of the rule in Browne v Dunn that would have caused the trial to miscarry. The Court held that the trial judge did not err in permitting and taking into account evidence of the applicant's alleged prior misconduct, and that there was no error in the judge not taking into account the applicant's mental illness as a mitigating factor in sentencing.