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Court of Criminal Appeal 25 November 2016

Mulvihill v R

[2016] NSWCCA 259

Homicide
CRIMINAL LAW CONVICTION APPEAL MURDER LEAVE TO APPEAL GRANTED ON TWO GROUNDS SENTENCE APPEAL

Citation: Mulvihill v R [2016] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 25 November 2016
Judges: Ward JA; Beech-Jones J; Fagan J

Background

The appellant was convicted of the murder of his former lover following a jury trial in the Supreme Court before Fullerton J. The deceased and the appellant had been colleagues at a pharmaceutical company and had conducted an extramarital affair for approximately 18 months. After the deceased relocated to Sydney and sought to end the relationship, she recorded ongoing anxiety and fear about the appellant's persistent contact. She was found dead in her Sydney apartment on 16 July 2012, having sustained two fatal stab wounds: one to the neck severing the jugular vein, and one penetrating wound to the heart.

The appellant pleaded not guilty and raised no affirmative defences at trial. His case, supported by his own evidence, was that the deceased's death was accidental: that she had sustained the wounds herself during a physical struggle between them following an argument. The jury rejected that account and convicted him of murder.

The appellant was sentenced to 29 years' imprisonment with a non-parole period of 22 years. He subsequently sought to appeal both conviction and sentence, requiring an extension of time given the significant delay in filing his notice of appeal.

  • Whether the trial judge erred in failing to leave unlawful and dangerous act manslaughter or the "second limb" of self-defence to the jury, where the appellant had not run either of those cases at trial
  • Whether the trial judge erred in failing to leave provocation to the jury
  • Whether the trial judge's directions on circumstantial evidence, flight as consciousness of guilt, and onus and standard of proof were defective
  • Whether prejudicial comments by the prosecutor, or a breach of the rule in Browne v Dunn, caused the trial to miscarry
  • Whether the sentencing judge erred by failing to take into account the appellant's facilitation of the administration of justice
  • Whether the sentencing judge erred in admitting and relying upon evidence of the appellant's alleged prior misconduct
  • Whether the sentencing judge erred in failing to take into account the appellant's mental illness

Decision

The Court granted the extension of time for filing and granted leave to appeal on grounds 1 and 2 of the conviction appeal (unlawful and dangerous act manslaughter, and the second limb of self-defence), as well as leave to appeal against sentence. Leave was refused on the remaining conviction grounds, and the Court noted those grounds would have been dismissed in any event.

On the manslaughter and self-defence grounds, the Court found no error in the trial judge's decision not to leave those alternatives to the jury. The appellant's entire case at trial was that the death was accidental, not that he had committed an unlawful and dangerous act, nor that he had acted in self-defence but used excessive force. There was no evidential foundation, on the case as actually conducted, that would have required those alternatives to be put to the jury.

The Court similarly rejected the provocation ground. The amended provocation provisions under the Crimes Amendment (Provocation) Act 2014 (NSW) applied, and the evidence did not raise a sufficient basis for the partial defence to be left to the jury. The remaining conviction grounds, including complaints about directions on circumstantial evidence, consciousness of guilt, and alleged prosecutorial misconduct, were refused leave and found to disclose no arguable error.

On the sentence appeal, the Court found no error in each of the three grounds advanced. The sentencing judge's treatment of the appellant's depression was consistent with the limited basis on which it had been adduced at the sentence hearing: counsel for the appellant had expressly disclaimed any causal connection between the appellant's mental state and the offending. No error was demonstrated in the approach to either the alleged facilitation of justice or the prior misconduct evidence.

Orders Made

  • Extension of time for filing the notice of appeal and application for leave to appeal granted to 22 April 2016
  • Leave to appeal against conviction granted on grounds 1 and 2
  • Leave to appeal against conviction refused on grounds 3 to 8 and 10 (ground 9 was not pressed)
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but appeal against sentence dismissed

Key Takeaways

  • A trial judge is not required to leave alternative verdicts or partial defences to the jury where the accused has not conducted the trial on those bases and the evidence does not provide a sufficient foundation for them.
  • Where an accused's defence is pure accident, the absence of any evidence supporting intentional but excessive force means neither unlawful and dangerous act manslaughter nor the excessive self-defence limb need be left to the jury.
  • Under the amended provocation provisions in New South Wales, the partial defence requires an evidential foundation before the trial judge is obliged to direct the jury on it; the mere fact of an acrimonious relationship does not satisfy that threshold.
  • No error was established in the sentencing judge's treatment of a mental health condition where defence counsel had expressly limited the relevance of that material and disclaimed any causal connection between the condition and the offence.
  • In dismissing both appeals, the Court of Criminal Appeal confirmed that the obligation to leave alternative defences arises from the evidence and the way the case is run at trial, not from post-conviction submissions about what might theoretically have been available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23, 418
- Crimes Amendment (Provocation) Act 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(eb), 21A(2)(g), 21A(3)(f), 21A(3)(g), 22A, 44
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 4(2), 18
- Jury Act 1977 (NSW), ss 53A, 53B, 55D, 55DA, 68C
- Crimes Act 1958 (Vic), ss 400(1), 400(2)

Cases:
- Browne v Dunn (1894) 6 R 67
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21
- Abdallah v The Queen [2016] NSWCCA 34
- Grogan v R [2016] NSWCCA 168
- Najibi v R [2016] VSCA 177
- BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139
- Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
- Minniti v R (2006) 159 A Crim R 394; [2006] NSWCCA 30
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194