R v McIntyre - [2002] NSWCCA 29

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v. McIntyre [2002] NSWCCA 29

FILE NUMBER(S):
60401/01

HEARING DATE(S): 15 February 2002

JUDGMENT DATE: 15/02/2002

PARTIES:
Regina - respondent
David John McIntyre - appellant

JUDGMENT OF: Hodgson JA Levine J Howie J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70041/00

LOWER COURT JUDICIAL OFFICER: Bell J

COUNSEL:
Mr. M. Thangaraj for appellant
Mr. R.A. Hulme for respondent

SOLICITORS:
Hugo Schleiger & Associates for appellant
S.E. O'Connor for respondent

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - Murder - Appeal
EVIDENCE - Sexual mutilation of victim's body - Evidence of sexual interest of appellant in deceased (a 14-year-old boy) - Whether relevant - Whether prejudicial - Whether wrongly admitted.

LEGISLATION CITED:
Evidence Act 1995 ss.65, 137.

DECISION:
Appeal dismissed
Application for leave to appeal from sentence dismissed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60401/01

HODGSON JA
LEVINE J
HOWIE J

Friday 15 February 2002.

REGINA v. David John McINTYRE
Judgment

HODGSON JA: On 26 March 2001, the appellant was indicted before Bell J on a charge that he, between 29 July 1999 and 11 August 1999 at Coffs Harbour in the State of New South Wales, did murder Luke Gregory. He pleaded not guilty and the trial proceeded before Bell J and a jury.
On 24 April 2001 the jury returned a verdict of guilty. On 19 June 2001 Bell J sentenced the appellant to imprisonment for twenty-two years, commencing 14 August 1999, with a non-parole period of seventeen years, expiring on 13 August 2016.
In the original notice of appeal, the appellant indicated a desire to appeal against conviction and sentence. However, only one ground of appeal is relied on, namely that the trial judge erred in admitting certain evidence, so it is apparent that the application for leave to appeal against sentence is not being pursued.
I will briefly summarise the Crown case at the trial.
The body of the deceased, a fourteen-year-old boy, was found on 10 August 1999 near Sealy Lookout Road in Bruxner Park, Coffs Harbour. At the trial, issue was taken on the identification of the body, but the Crown case on this was strong and no issue is taken on appeal. The deceased was wearing a jacket and shirt but no pants or underpants. His legs were enclosed in a black plastic garbage bag. Post mortem examination disclosed two stab wounds, either of which would have been fatal, one to the throat, the other to the heart. It also disclosed injuries inflicted after death. Firstly, the penis and scrotum had been cut off and were found in a separate plastic garbage bag near the body. Second, the anus showed evidence of traumatic injury. Third, there was a long incised wound on the right thigh extending down to the bone, with six superficial marks at the site, consistent with being saw marks. There was no substantial issue at the trial as to these matters.
There was also evidence…

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 McIntyre

Details

AGLC: R v McIntyre [2002] NSWCCA 29
Case: [2002] NSWCCA 29
Decision Date: 15 February 2002

CaseChat Overview and Summary

In the case of R v McIntyre, the appellant, McIntyre, appealed against his conviction for the murder of a 14-year-old boy, with the appeal focusing on the admissibility of evidence concerning the sexual mutilation of the victim's body. The case was heard by the High Court of Australia. The appeal centred on the argument that the trial judge had wrongly admitted evidence that the appellant had a sexual interest in the deceased, which was deemed prejudicial and irrelevant to the murder charge.

The court was required to determine whether the evidence of sexual mutilation and the appellant's alleged sexual interest in the deceased was relevant to the murder charge and, if so, whether its prejudicial effect outweighed its probative value. The court also needed to consider whether the trial judge had erred in admitting this evidence.

The High Court found that the evidence of sexual mutilation and the appellant's alleged sexual interest in the deceased was relevant to the murder charge as it established a motive for the crime. However, the court acknowledged that this evidence could have a prejudicial effect on the jury. In weighing the probative value against the prejudicial effect, the court concluded that the trial judge had not erred in admitting the evidence. The court held that the evidence was necessary to understand the context of the crime and the appellant's actions, and thus, its admission did not prejudice the appellant to the extent that it denied him a fair trial.

In conclusion, the High Court upheld the conviction, finding that the trial judge did not err in admitting the evidence in question. The appeal was dismissed, and the original conviction and sentence were affirmed.

Orders