Mencarious v R [2008] NSWCCA 237

Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Sentence / Court of Criminal Appeal

Legal Issues

1. 1 ["Whether the trial judge failed to adequately or fairly put the defence case to the jury by not summarising the appellant's evidence." "Whether the trial judge misunderstood or misstated Associate Professor Hilton's evidence about cause of death." 'Whether the trial judge erred by not leaving or explaining self-defence to the jury.' 'Whether the trial judge failed to properly direct the jury in relation to accident.' 'Whether the trial judge should have left provocation to the jury.' 'Whether Rule 4 Criminal Appeal Rules should be applied where most complaints were not raised at trial.' 'Whether the sentencing judge erred in setting the standard non-parole period for murder.']

Ratio Decidendi

The conviction appeal failed because the forensic evidence established that asphyxiation, caused by the appellant, was at least a substantial cause of death; the jury were adequately directed on the real issues, namely whether the appellant's acts were deliberate and accompanied by an intention to kill or cause grievous bodily harm; self-defence and provocation were not raised on the evidence; and the accident direction, if anything, was favourable to the appellant. Rule 4 applied to complaints not raised at trial, and no arguable miscarriage of justice was shown. The sentence appeal failed because the sentencing judge considered the relevant objective and subjective matters and did not...

Court Disposition

Appeal against conviction dismissed. Leave to appeal sentence granted, but sentence appeal dismissed.

Orders

• ['The appeal against conviction dismissed.' 'Grant leave to appeal the sentence but dismiss appeal.']