R v Cullinane - [2010] QCA 358

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cullinane [2010] QCA 358

PARTIES:

R
v
CULLINANE, Gareth John
(appellant)

FILE NO/S:

CA No 171 of 2009
SC No 841 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2010

JUDGES:

Muir and Chesterman JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS –appellant found guilty of murder after a trial – co-accused found guilty of manslaughter – pre-trial judge refused appellant’s application for a separate trial – appellant submitted he should have been tried separately to avoid the prejudice of placing before the jury statements made by the co-accused that were inadmissible against the appellant – whether pre-trial judge erred in refusing to grant the appellant a separate trial – whether refusal resulted in a miscarriage of justice

Criminal Code 1899 (Qld), s 590AA, s 597B

Ali v The Queen (2005) 79 ALJR 662; (2005) 214 ALR 1; [2005] HCA 8, cited
Dupas v The Queen (2010) 84 ALJR 488; [2010] HCA 20, applied
R v Aboud; R v Stanley [2003] QCA 499, considered
R v Davidson [2000] QCA 39, applied
R v Roughan& Jones (2007) 179 A Crim R 389; [2007] QCA 443, cited
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, considered

COUNSEL:

L K Ackerman for the appellant
R G Martin SC for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: Introduction

The appellant was found guilty after an 11 day trial of having murdered Adrian James Nolan on 12 July 2007. His co-accused, Michael Joseph McLean, was found guilty of manslaughter. The appellant pleaded guilty to the offence of improperly interfering with a dead human body at the commencement of the trial. He appealed against his murder conviction on the grounds that the judge who heard his application for a trial separate from that of his co-accused erred in refusing the application and the refusal resulted in a miscarriage of justice.

Ground of appeal

[2] The thrust of the argument advanced in support of the ground of appeal is that the appellant should have been tried separately from his co-accused to avoid the prejudice which necessarily flowed from placing before the jury statements inadmissible against the appellant made by his co-accused concerning a plan to kill the deceased which: were derogatory of the appellant, asserted that the appellant had subjected his co-accused to threats, and which provided a motive for the killing.

The evidence before the jury

[3] The facts before the jury, as stated by counsel for the appellant…

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 R v Cullinane

Details

AGLC: R v Cullinane [2010] QCA 358
Case: [2010] QCA 358
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appeal in R v Cullinane involved the appellant, who was found guilty of murder following a trial. The co-accused was found guilty of manslaughter. The appellant contested his conviction, arguing that he should have been tried separately from the co-accused to prevent the jury from being exposed to statements made by the co-accused, which were inadmissible against the appellant. The appellant claimed that the pre-trial judge's refusal to grant a separate trial resulted in a miscarriage of justice due to the prejudicial nature of the inadmissible statements.

The central legal issues before the court were whether the pre-trial judge erred in denying the appellant's application for a separate trial and, if so, whether this error led to a miscarriage of justice. The court considered whether the prejudicial impact of the inadmissible statements from the co-accused was so significant that it necessitated a separate trial for the appellant, thereby potentially affecting the fairness of the trial and the safety of the conviction.

In its reasoning, the court found that the pre-trial judge did not err in refusing the appellant's application for a separate trial. The court held that the potential prejudice from the inadmissible statements did not reach a level that would necessitate a separate trial. It was determined that the jury was properly instructed to disregard the inadmissible statements when considering the appellant's guilt. Consequently, the court concluded that there was no miscarriage of justice and dismissed the appeal.

Orders

Orders of the court

The appeal be dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cullinane [2010] QCA 358
PARTIES:	R v CULLINANE, Gareth John (appellant)
FILE NO/S:	CA No 171 of 2009 SC No 841 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2010
JUDGES:	Muir and Chesterman JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal be dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS –appellant found guilty of murder after a trial – co-accused found guilty of manslaughter – pre-trial judge refused appellant’s application for a separate trial – appellant submitted he should have been tried separately to avoid the prejudice of placing before the jury statements made by the co-accused that were inadmissible against the appellant – whether pre-trial judge erred in refusing to grant the appellant a separate trial – whether refusal resulted in a miscarriage of justice Criminal Code 1899 (Qld), s 590AA, s 597B Ali v The Queen (2005) 79 ALJR 662; (2005) 214 ALR 1; [2005] HCA 8, cited Dupas v The Queen (2010) 84 ALJR 488; [2010] HCA 20, applied R v Aboud; R v Stanley [2003] QCA 499, considered R v Davidson [2000] QCA 39, applied R v Roughan& Jones (2007) 179 A Crim R 389; [2007] QCA 443, cited Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, considered
COUNSEL:	L K Ackerman for the appellant R G Martin SC for the respondent
SOLICITORS:	Robertson O’Gorman for the appellant Director of Public Prosecutions (Queensland) for the respondent