Citation: Regina v Brian John Welsh [1999] NSWCCA 386
Court: NSW Court of Criminal Appeal
Date: 3 December 1999
Judge(s): Wood CJ at CL; Sully J; Simpson J
Background
The appellant was convicted of murder following a jury trial before Hidden J in the Supreme Court. The victim died on or about 19 December 1993 at Gilgandra, and the appellant did not dispute that he had caused the death. His defence rested entirely on diminished responsibility: he argued his mental condition at the time of the killing reduced his culpability from murder to manslaughter.
The Crown declined to accept an earlier guilty plea to manslaughter, and the matter proceeded to a three-week jury trial. The jury returned a verdict of guilty of murder, and the appellant was sentenced to 18 years' penal servitude, comprising a minimum term of 12 years and an additional term of 6 years.
The appellant appealed against his conviction and sought leave to appeal against sentence. At the hearing, no substantive submissions were advanced on the sentence ground, so the Court confined its attention to the conviction appeal.
Legal Issues
- Whether the cross-examination of the appellant's expert psychiatric witness, Professor Marie Bashir, by the Crown Prosecutor was unfairly prejudicial and should not have been permitted.
- Whether the verdict of guilty of murder was unsafe and unsatisfactory in all the circumstances.
Decision
The Court considered the cross-examination of Professor Bashir, the appellant's expert in clinical psychiatry, as the centrepiece of the appeal. The Crown Prosecutor's conduct in cross-examination involved the use of material from the prison medical records, including notes from a Dr Lewin who had assessed the appellant in May 1994. The trial judge had made rulings about how that material could be used, and the Crown Prosecutor's cross-examination was said to have strayed beyond those rulings in a manner prejudicial to the appellant.
The Court found, however, that competent and experienced senior counsel for the appellant had made a deliberate tactical decision at trial not to seek a discharge of the jury following the impugned cross-examination. Instead, counsel elected to apply for limiting directions under section 136(a) of the Evidence Act 1995 (NSW), and the trial judge gave those directions in clear and comprehensive terms. No complaint was made about the content of those directions at the time, and the Court of Criminal Appeal found no proper basis for complaint on appeal.
The Court accepted that the point raised by the appellant was a fine one, given that diminished responsibility was the only real issue at trial and the onus of establishing it rested on the appellant. Nonetheless, the Court was satisfied that the trial judge's directions were fair and adequate, and that the appellant had not been deprived of a fair chance of acquittal. The second ground, that the verdict was unsafe and unsatisfactory, was not pressed with any submissions at the hearing and was not separately addressed by the Court.
Orders Made
- Appeal against conviction dismissed.
- Leave granted to appeal against sentence.
- Appeal against sentence dismissed.
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a deliberate tactical decision by experienced trial counsel to seek limiting directions rather than a jury discharge will carry significant weight when the same point is later raised on appeal.
- Under section 136(a) of the Evidence Act 1995 (NSW), a trial judge may give directions limiting the use of evidence; where such directions are clear, comprehensive, and unchallenged at trial, an appellate court is unlikely to find they constituted a miscarriage of justice.
- Where an appellant advances two grounds of appeal but makes no substantive submissions on one of them at the hearing, the court may decline to address that ground in its reasons.
- The burden of affirmatively proving diminished responsibility rests on the accused, and the standard is one of tipping the scales ever so slightly in the accused's favour, as the trial judge directed the jury in this case.
- No error was established in the trial judge's rulings or directions, notwithstanding the acknowledged sensitivity of the cross-examination of a key expert witness on the sole contested issue in the trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 136(a)
Cases: No cases were cited in the text of the judgment provided.