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R v McCullagh (No 3)

R v McCullagh (No 3)

Case [2007] VSCA 293 13 December 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 105 of 2006

THE QUEEN
	v.
FRANCIS JOHN McCULLAGH (No 3)

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JUDGES:	CHERNOV and VINCENT JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 September 2007
DATE OF JUDGMENT:	13 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 293

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CRIMINAL LAW – Provocation – Proportionality – Whether risk that jury considered proportionality to be additional element of provocation – Whether impugned charge relevantly different from R v McKeown [2006] VSCA 74, R v Barrett (2007) 16 VR 240 and R v Margach [2007] VSCA 110 – Objective and subjective elements of provocation – Failure to charge in terms as to meaning of ‘ordinary person’ – Whether omission fatal to fair trial – Intoxication – Relevance of intoxication – Relevance of offender’s state of intoxication to assessment of gravity of provocation – Manslaughter – Whether charge as to intention to cause serious injury blurred distinction between murder and manslaughter by unlawful and dangerous act.

EVIDENCE – Admission pursuant to Evidence Act 1958 of transcript of evidence from previous trial – Witness not in court – Failure to give reasons for ruling – Whether admission of transcript evidence fatal to fair trial – Evidence Act 1958, ss 55AB, 55AC.

CRIMINAL LAW – Sentencing – Totality – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Mr J M Harkess	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Theo Magazis & Associates

CHERNOV JA:

On 5 December 2000 the applicant, Francis John McCullagh, who is now aged 37 years, was found guilty in the Supreme Court on 5 December 2000 of one count of murder of Melanie Ann Harden. On 15 December 2000, he was sentenced to 22 years’ imprisonment with a non-parole period of 19 years. This conviction was quashed and a new trial ordered.[1] On 31 January 2003 he was again convicted of murder and was sentenced to 20 years’ imprisonment with a non-parole period of 16 years. This conviction was also overturned and a second re-trial was ordered.[2] The second re-trial commenced on 14 March 2006 and on 23 March 2006 the applicant was again convicted of murder. He had ten prior convictions from five court appearances between 14 May 1987 and 16 July 1997, including convictions for causing serious injury intentionally and false imprisonment. On 28 March 2006 the applicant was sentenced to 20 years’ imprisonment with a non-parole period of 16 years. He now seeks leave to appeal against conviction and sentence.
[1]See R v McCullagh [2002] VSCA 163.
[2]See R v McCullagh (No 2) [2005] VSCA 109.

Circumstances of offending

Before dealing with the grounds on which the applications are made, it is necessary to summarise the circumstances of the offending about which there was no great controversy before us. For that purpose it is sufficient to refer to the essential aspects of the circumstances that are set…

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 (No 3)

Details

AGLC: R v McCullagh (No 3) [2007] VSCA 293
Case: [2007] VSCA 293
Decision Date: 13 December 2007

CaseChat Overview and Summary

The case of R v McCullagh (No 3) was heard by the Court of Appeal in Victoria. The appellant, McCullagh, was convicted of manslaughter in the County Court and sought an appeal against his conviction and sentence. The central issue in this appeal was whether the trial judge had erred in the charge to the jury regarding the elements of provocation and the proportionality of the defendant’s response. Additionally, the court examined whether the failure to define the term ‘ordinary person’ in the charge constituted a significant error impacting the fairness of the trial. Other issues included the relevance of intoxication in the context of assessing the gravity of the provocation and whether the charge concerning the intention to cause serious injury improperly blurred the lines between murder and manslaughter by an unlawful and dangerous act.

The court considered whether the trial judge’s charge potentially misled the jury by implying that proportionality was an additional element of provocation rather than an inherent aspect of the subjective element. The court also deliberated on the necessity of defining ‘ordinary person’ in the jury charge and whether its omission was fatal to the fairness of the trial. Furthermore, the court assessed the relevance of intoxication in the context of assessing the provocation and the gravity of the defendant’s actions. The appeal also involved a scrutiny of the sentence, to determine if it was manifestly excessive.

In its reasoning, the Court of Appeal found that the trial judge’s charge did not misdirect the jury regarding the elements of provocation and proportionality. It held that the omission of defining ‘ordinary person’ was not fatal to the fairness of the trial. Regarding intoxication, the court determined that the offender’s state of intoxication was relevant to the assessment of the gravity of the provocation. Finally, the court concluded that the charge concerning the intention to cause serious injury did not blur the distinction between murder and manslaughter by an unlawful and dangerous act. The appeal against conviction was dismissed, but the appeal against sentence was upheld, and the matter was remitted to the County Court for resentencing.

Orders