Mulligan v The Queen - [2013] NZCA 651

IN THE COURT OF APPEAL OF NEW ZEALAND

CA457/2011 [2013] NZCA 651
BETWEEN DEAN RICHARD MULLIGAN Appellant

ANDTHE QUEEN Respondent

Hearing: 20 November 2013
Court: Randerson, Heath and Asher JJ Counsel: J C Hannam for Appellant
A Markham for Respondent

Judgment: 13 December 2013 at 2:00 pm

JUDGMENT OF THE COURT

A Leave to admit further evidence on appeal is refused.

B The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant was convicted after jury trial of the murder of Marice McGregor, which occurred on 19 April 2010. He was later sentenced by the trial Judge, Clifford J, to life imprisonment with a minimum term of 15 years.1 He now appeals against conviction on the sole ground that further evidence
demonstrates that a miscarriage of justice has occurred.

1 R v Mulligan HC Whanganui CRI-2010-083-1242, 1 July 2011.

MULLIGAN v R CA457/2011 [2013] NZCA 651 [13 December 2013]

[2] The appellant seeks leave to introduce further evidence in the form of two affidavits. The first is from himself and the second is from a consultant psychiatrist, Dr N R Judson. The essence of the appellant’s evidence is that he was constrained from giving a full account of his relationship with the deceased through fear of reprisal from two men whom he named in his evidence at trial. The appellant gave evidence that one of these men (whom he named as Phil Morrison) had committed the murder. He, the appellant, had been present at the murder scene but had not taken part in Ms McGregor’s death. The appellant named the second man as Max Twedale. He said Mr Twedale had been sexually abusing him over a lengthy period of time, apparently in order to force him into a sexual relationship with Ms McGregor.

[3] In his affidavit, the appellant gives an account of various drug-related pick- ups and deliveries he alleges he undertook with Ms McGregor at the behest of Mr Morrison and Mr Twedale. This evidence was not before the jury.

[4] The effect of Dr Judson’s evidence is that the appellant is a person of chronically low self-esteem and poor inter-personal coping skills. He has a history of post-traumatic stress disorder resulting from childhood sexual abuse. Someone with this background would be particularly vulnerable to intimidation, manipulation and exploitation and be less able than the average person to act in an assertive manner to deal with a threatening situation. This could go some way to explaining why he did not give a fuller account than he did at trial. Since trial, his self-esteem had improved and he now felt he was in a comparatively safe environment.

[5] The Crown opposes the admission of both affidavits on the grounds that they do not meet the requirements for the admission of fresh evidence and that the evidence could not reasonably have affected the verdict.

Background

[6] Ms McGregor met the appellant in 2008 through an online dating site. They formed a sexual…

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 Mulligan v The Queen

Details

AGLC: Mulligan v The Queen [2013] NZCA 651
Case: [2013] NZCA 651
Decision Date: 13 December 2013

CaseChat Overview and Summary

The appeal by Dean Richard Mulligan against his conviction for the murder of Marice McGregor was dismissed by the Court of Appeal of New Zealand. Mulligan had sought to introduce additional evidence in the form of affidavits from himself and a psychiatrist, aiming to demonstrate a miscarriage of justice. Mulligan's affidavit claimed he was intimidated into not fully disclosing his relationship with McGregor and that another man, Phil Morrison, was the actual murderer. The psychiatrist's affidavit explained Mulligan's psychological vulnerability and poor coping skills, which might have inhibited his testimony at trial.

The primary legal issues were whether the new evidence was sufficiently fresh and credible and whether its admission could reasonably have led to a different verdict. The court noted that the evidence Mulligan sought to introduce was not fresh, as it was known to him prior to trial, and there was no credible explanation for its omission. The court also found that the additional evidence did not significantly differ from what was already presented at trial and could not have reasonably altered the jury's decision, given the overwhelming evidence against Mulligan.

The court concluded that the additional evidence did not meet the criteria for admission and there was no reasonable possibility that it would have led to a different verdict. Therefore, the appeal against conviction was dismissed, and the original conviction and sentence were upheld.

Orders