R v McCullagh - [2002] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 407 of 2000

THE QUEEN
	v.
FRANCIS JOHN MCCULLAGH

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JUDGES:	WINNEKE, P., CALLAWAY, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 September 2002
DATE OF JUDGMENT:	18 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 163

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Criminal law – Murder – Judge’s directions to jury as to intoxication and its impact on intent – Directions inadequate – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson Q.C. and Mr. J.P. McMahon	Theo Magazis

WINNEKE, P.:

The applicant Francis John McCullagh (whom I shall call “the applicant”) is now aged 32 years. He seeks leave to appeal against a conviction recorded against him by a jury in the Supreme Court of Victoria on 5 December 2000 of the murder, by strangulation, of Melanie Harden (hereinafter called “the deceased”). Following a plea in mitigation, made on 14 December 2000, the trial judge sentenced the applicant to a term of 22 years imprisonment and fixed a non-parole period of 19 years.

By notice dated 19 December 2000 the applicant has sought leave to appeal against his conviction on a number of grounds which allege errors made by the trial judge in the conduct of the trial and in directions to the jury. By notice of the same date the applicant has sought leave to appeal against the sentence imposed on the grounds that the sentence was manifestly excessive both as to head sentence and minimum term. Before turning to a consideration in detail of the grounds of appeal, it is desirable to say something briefly about the facts which surrounded the death of the deceased and which were established by the evidence at trial.

The deceased was a young woman aged 21 years at the time of her death. She lived, at the relevant time, in a caravan at the caravan park in Hastings. For approximately five to six months before her death she had been keeping company with the applicant, who is apparently friendly with a man called Phillip Buttigieg, who lives in Cranbourne. It would seem that from Thursday 9 September 1999 until the time of her death on the afternoon of Saturday 11 September, the deceased, the applicant, Buttigieg and a girl named Melissa Dunkin (a friend of the deceased), were in each other’s company for substantial periods of time at various places on the Peninsula and in the City, and were engaged in bouts of drinking, drug ingestion and marijuana smoking at intensities which varied according to the evidence of witnesses. Upon blood analysis following her death, the deceased’s blood was found to contain high levels of methyl-amphetamine and ecstasy, although there was no evidence, upon urine testing, of marijuana.

The events leading to the death of the deceased appear to have commenced in the evening of Thursday 9 September 1999. The evidence was that, in the early evening, the applicant,…

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 McCullagh

Details

AGLC: R v McCullagh [2002] VSCA 163
Case: [2002] VSCA 163
Decision Date: 18 October 2002

CaseChat Overview and Summary

In the case before the court, the defendant, McCullagh, was charged with the murder of an individual. The case was heard in the Supreme Court, where the jury's role was to determine the defendant's guilt based on the evidence presented. A central issue in the trial was the effect of intoxication on the defendant’s capacity to form the requisite intent for murder. The adequacy of the judge's instructions to the jury regarding intoxication and its impact on the determination of intent became a focal point of the appeal.

The court was tasked with assessing whether the judge's directions to the jury adequately addressed the interplay between intoxication and intent. The defendant argued that the judge's instructions were insufficient, as they did not clearly outline how intoxication could negate the intent to kill, which is a crucial element of the crime of murder under Australian law. The appeal hinged on whether the judge's directions were adequate to ensure that the jury could correctly apply the law in relation to the defendant's state of intoxication at the time of the offence.

The court found that the judge's directions to the jury were indeed inadequate. It was determined that the judge failed to sufficiently explain how voluntary intoxication could potentially negate the intent to kill, thereby impacting the jury's ability to reach a just verdict. Given this error, the court concluded that the trial was unfair and that a re-trial was necessary to ensure that the defendant received a fair hearing. Consequently, the appeal was upheld, and the case was remitted for a new trial. The court did not make any further orders beyond mandating the re-trial to address the identified legal deficiencies.

Orders