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Court of Criminal Appeal 30 August 2000

Regina v Frawley

[2000] NSWCCA 340

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE RELATIONSHIP EVIDENCE VOLUNTARINESS OF RECORD OF INTERVIEW DNA EVIDENCE APPLICATION OF RULE 4

Citation: Regina v Frawley [2000] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 30 August 2000
Judge(s): Heydon JA, Smart AJ, Ireland AJ

Background

The appellant was convicted of the murder of his de facto wife, who died from 35 stab wounds inflicted in the early hours of 7 May 1988. The appellant was found sitting near her body at their home. His primary defence at trial was that extreme intoxication from alcohol and medication rendered his acts involuntary, or at least negated the mental element required for murder.

The appellant had in fact been tried twice. His first conviction, at a 1990 trial at which he was unrepresented, was set aside on appeal because inadmissible evidence had been received. At his second trial in 1994, before Abadee J and a jury, he was again convicted and sentenced to life imprisonment.

The appeal to the Court of Criminal Appeal was filed in February 1995 but was not heard until August 2000, a delay explained by difficulty obtaining legal aid and the appellant's serious ongoing health problems, including spinal, bowel cancer and heart surgery.

  • Whether "relationship evidence" (the evidence of a witness named Jeacle) was wrongly admitted, or whether the trial judge's directions to the jury on that evidence were inadequate or misleading
  • Whether the record of interview with police was involuntary and should have been excluded
  • Whether DNA evidence that was not tendered at trial gave rise to a ground of appeal
  • Whether the appellant's instructions to his trial counsel were disregarded, and whether Rule 4 of the Court of Criminal Appeal rules applied to permit new grounds to be raised
  • Whether the trial judge erred in admitting the evidence of forensic psychiatrist Dr Wong
  • Whether the appeal against sentence disclosed any grounds for intervention

Decision

Relationship evidence (Ground 1): The Court considered whether the trial judge had erred in admitting the evidence of Jeacle or in directing the jury on its proper use. The Court found no error warranting intervention. The judgment does not state the full reasoning in the portions provided, but the ground was rejected.

Record of interview (Ground 2): The appellant argued the record of interview was involuntary and should have been excluded. The Court rejected this ground. Critically, the appellant's trial counsel had not objected to the record of interview at trial, and no basis was established to grant leave under Rule 4 to raise the point for the first time on appeal.

DNA evidence (Ground 3): The appellant submitted that DNA evidence not tendered at trial should have been, and that this gave rise to a miscarriage of justice. The Court considered this ground carefully, given the detailed written submissions filed on the point, but ultimately rejected it. The application of the proviso under the Criminal Appeal Act 1912 was considered and found applicable.

Dr Wong's evidence (Ground 4): The appellant contended he had been "bullied" into attending a forensic psychiatric interview and that Dr Wong's evidence was therefore inadmissible. The Court rejected this on multiple bases. There was no evidentiary foundation for the allegation of bullying, trial counsel had not objected to the evidence (save on a narrow point that the Crown then withdrew), and Rule 4 did not warrant granting leave to raise new objections. The ground concerning Dr Wong offering an "opinion on intent" was also rejected for want of specificity.

Sentence: The Notice of Appeal nominated sentence as a subject of the appeal but stated no grounds and no argument was directed to the sentence at the hearing. The appeal against sentence was therefore dismissed on that basis alone.

Orders Made

  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a failure by trial counsel to object to evidence will ordinarily preclude an appellant from raising that objection for the first time on appeal, absent a grant of leave under Rule 4.
  • Where a Notice of Appeal nominates sentence as a subject of appeal but states no grounds and no argument is advanced at the hearing, the appeal against sentence will be dismissed without substantive consideration.
  • An allegation that a party was "bullied" by their own counsel into consenting to a forensic interview will not succeed as a ground for excluding the resulting expert evidence unless that allegation is supported by an evidentiary foundation, such as affidavit or oral evidence.
  • No error was established in admitting relationship evidence or in the trial judge's directions concerning it, nor in the treatment of DNA evidence that was not tendered at trial.
  • The proviso under the Criminal Appeal Act 1912 remained available to the Court where an irregularity was identified but no substantial miscarriage of justice was demonstrated.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Frawley (1993) 69 A Crim R 208 (the first appeal, which succeeded)
- Gallagher v R (1986) 160 CLR 392
- Penney v R (1998) 155 ALR 605
- R v Murphy (1985) 4 NSWLR 42
- Wilde v R (1988) 164 CLR 365
- Wilson v R (1970) 123 CLR 334