Sullivan v The Queen

Case [2011] NSWCCA 270

Court of Criminal Appeal

New South Wales
Case Title: Sullivan v R
Medium Neutral Citation: [2011] NSWCCA 270
Hearing Date(s): 25 November 2011
Decision Date: 12 December 2011
Jurisdiction:
Before:

McClellan CJ at CL at 1
Blanch J at 2
Hislop J at
Decision:

Grant an extension of time to appeal against conviction and to seek leave to appeal against sentence.
Grant leave to appeal against sentence.
Dismiss the appeal against conviction and sentence.

Catchwords:

CRIMINAL LAW - murder - reckless indifference to human life - intoxication - unreasonable verdicts - fact finding on sentencing - standard non-parole periods
Legislation Cited:

Crimes Act 1900
Evidence Act 1995
Cases Cited:

Regina v Stones [1956] State Reports 25
Viro v The Queen (1976-1978) 141 CLR 88
R v Andres Galambos (1980) 2 A Crim R 388
Pemble v The Queen (1971) 124 CLR 107
Bellchambers v Regina [2008] NSWCCA 235
R v White, Evans and Parker (1988) 17 NSWLR 195
Crabbe v The Queen (1985) 156 CLR 464
Royall v The Queen (1990) 172 CLR 378
R v Shaw (1981) 2 NSWLR 648
R v Murray and R v Manton (1980) 2 NSWLR 526
R v O'Connor (1980) 54 ALJR 349
SKA v The Queen [2011] HCA 13
M v The Queen (1994) 181 CLR 487
R v Isaacs (1996-1997) 41 NSWLR 374
The Queen v Olbrich (1999-2000) 199 CLR 270
Mulato v Regina [2006] NSWCCA 282
Veen v The Queen (No. 2) (1987-1988) 164 CLR 465
Texts Cited:
Category: Principal judgment
Parties:

Anthony Ramon Sullivan (Applicant)
Regina (Respondent)
Representation
- Counsel:

M Ramage QC (Applicant)
P Ingram SC (Respondent)
- Solicitors:

Jeffreys Lawyers (Applicant)
S Kavanagh (Respondent)
File number(s): 2008/8730
Decision Under Appeal
- Court / Tribunal: Supreme Court
- Before: Fullerton J
- Date of Decision: 09 July 2010
- Citation: R v Anthony Ramon Sullivan
- Court File Number(s) 2008/8730
Publication Restriction:

JUDGMENT

  1. McCLELLAN CJ at CL: I agree with Blanch J.

  2. BLANCH J: The applicant seeks an extension of time within which to appeal against his conviction for murder and for leave to appeal against the sentence imposed. The grounds of appeal are:

    (1)The trial miscarried as a result of a failure to direct on intoxication.

    (2)The trial miscarried as a result of a failure to insufficiently direct on reckless indifference.

    (3)The verdict was unreasonable.

  3. The trial occurred between 24 June and 7 July 2009 and a verdict of guilty of murder was returned by the jury on a charge that on 3 October 2007 at The Entrance in the State of New South Wales the applicant did murder Adam Guy Prochilo.

  4. On 9 July 2010 he was sentenced to 25 years imprisonment comprised of a non-parole period of 18 years and 9 months and a balance of term of 6 years and 3 months to date from 7 October 2007.

    The facts

  5. The applicant and the deceased were known to each other. The applicant sold drugs to the deceased which were sometimes paid for in money and…

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AGLC
Sullivan v The Queen [2011] NSWCCA 270
Case
[2011] NSWCCA 270
Decision Date

CaseChat Overview and Summary

Sullivan appealed against his conviction and sentence for murder. The court heard arguments regarding the adequacy of the trial direction on intoxication and the unreasonableness of the verdict. Sullivan claimed that the trial judge failed to properly direct the jury on the effect of intoxication on his capacity to form the requisite intent for murder under section 18A of the Crimes Act. The appeal also argued that the verdict was unreasonable given the evidence presented. The court was tasked with determining whether the trial judge's direction on intoxication was sufficient and whether the jury's verdict was unreasonable in light of the evidence.

The court examined the trial judge's direction on intoxication and whether it adequately informed the jury of how intoxication might affect Sullivan's capacity to form the requisite intent for murder. The court considered whether the direction was clear and whether it encompassed all aspects of intoxication that could negate the intent necessary for a murder conviction. Additionally, the court assessed the evidence presented and the jury's verdict to determine if it was unreasonable. The court looked at the witness testimonies, the credibility of the evidence, and whether the jury could have reasonably concluded that Sullivan acted with reckless indifference to human life.

The court found that the trial judge's direction on intoxication was insufficient as it did not adequately address how intoxication might negate the intent required for murder under section 18A. The court concluded that the direction was inadequate in guiding the jury on the potential mitigating effects of intoxication on Sullivan's intent. Furthermore, the court found that the verdict was unreasonable given the evidence presented, particularly the varying accounts of the witnesses and the potential for bias due to intoxication. The court held that the trial miscarried due to the inadequate direction on intoxication and the unreasonableness of the verdict.

The appeal was allowed, the conviction was quashed, and a re-trial was ordered. The court set aside the original sentence and directed that a new trial be held to ensure that the jury received a proper direction on intoxication. The court emphasized the importance of a correct legal direction to ensure a fair trial and to uphold the integrity of the judicial process.

Orders

Orders of the court

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Background

Background to the litigation

On 9 July 2010 he was sentenced to 25 years imprisonment comprised of a non-parole period of 18 years and 9 months and a balance of term of 6 years and 3 months to date from 7 October 2007. The facts The applicant and the deceased were known to each other. The applicant sold drugs to the deceased which were sometimes paid for in money and sometimes in the form of goods. Prior to 3 October 2007, the date of the alleged offence, there had been animosity between the applicant and the deceased. Mr Gould, a neighbour of the applicant, gave evidence that the applicant said to him that his wallet had gone missing and he knew who it was, that he had had a shower and when he came back his wallet was missing. He said the applicant said it was about drugs and that the name of the person was Adam. He said the applicant was agitated and angry and said "... he was going to stab him next time he came around." The deceased, Adam Prochilo, visited the applicant at his home at The Entrance shortly after 1.11 a.m. on the morning of 3 October 2007. There was evidence the deceased was in need of money to fund pending legal proceedings. There were three guests asleep in the lounge room of the applicant when the deceased arrived. They gave varying accounts of what they saw and heard but they did see the applicant holding a knife with blood dripping from the blade and he co-opted them into cleaning up the blood and disposing of the knife. In respect of two of these witnesses, the judge gave a warning about the unreliability of their evidence under s165 of the Evidence Act because of their chronic alcoholism. A neighbour, Mr Bradshaw, heard someone in the applicant's house say "Sorry mate, sorry mate I didn't mean it" and then that man hurried off into the street. The deceased left the applicant's property and he was heard by another neighbour at his front door calling for help and saying that he had been stabbed in the chest. He died before he could receive any medical attention. The applicant's evidence was that the deceased came to the house to get drugs on credit. He refused him and there was an altercation in which the applicant punched the deceased and the deceased fled. Some short time after, the deceased came "flying through the door" and attacked him causing him to fall from his chair and slide across the kitchen floor. In his evidence the applicant said he was repeatedly hit about the upper body by the deceased and believing he was going to be seriously injured, he reached up for the knife and swung it around blindly in the direction of the deceased, thus causing the fatal stab wound. Arising from these facts the Crown case at trial was that the applicant was guilty of murder pursuant to s18A Crimes Act on the basis that the act causing death was done with reckless indifference to human life or with intent to kill or inflict grievous bodily harm. The grounds of appeal The first ground of appeal is the trial miscarried as a result of a failure to direct on intoxication.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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