Regina v Brian John WELSH [1999] NSWCCA 386

Regina v Brian John WELSH [1999] NSWCCA 386

The appeal failed because the appellant had not shown unfairness amounting to a miscarriage of justice. Experienced senior counsel at trial deliberately chose not to seek discharge of the jury and instead sought directions under s.136(a) of the Evidence Act 1995 (NSW). Hidden J acceded to that application and gave clear, comprehensive and fair directions limiting the jury's use of Dr Lewin's notes. The appellant was not wrongly deprived of a fair chance of acquittal.

Jurisdiction
Australia
Judgment Date
03 December 1999
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence After Conviction for Murder
Outcome
Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed.
Legal Topics
['murder' 'manslaughter' 'diminished Responsibility' 'expert Psychiatric Evidence' 'cross Examination' 'unfair Prejudice' 'limiting Use of Evidence' 'unsafe and Unsatisfactory Verdict']
['criminal Law' 'evidence' 'criminal Procedure'] ['murder' 'manslaughter' 'diminished Responsibility' 'expert Psychiatric Evidence' 'cross Examination' 'unfair Prejudice' 'limiting Use of Evidence' 'unsafe and Unsatisfactory Verdict']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence After Conviction for Murder

Legal Issues

  1. 1 ["Whether the manner and content of the Crown Prosecutor's cross-examination of Professor Marie Bashir using Dr Lewin's prison medical notes was unfairly prejudicial to the appellant and should not have been permitted." 'Whether the verdict of guilty of murder was unsafe and unsatisfactory.' "Whether the use made of Dr Lewin's notes caused a miscarriage of justice or deprived the appellant of a fair trial."]

Ratio Decidendi

The appeal failed because the appellant had not shown unfairness amounting to a miscarriage of justice. Experienced senior counsel at trial deliberately chose not to seek discharge of the jury and instead sought directions under s.136(a) of the Evidence Act 1995 (NSW). Hidden J acceded to that application and gave clear, comprehensive and fair directions limiting the jury's use of Dr Lewin's notes. The appellant was not wrongly deprived of a fair chance of acquittal.

Court Disposition

Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed.

Orders

  • ['The appeal against conviction be dismissed.' 'Leave be granted to appeal against sentence.' 'The appeal against sentence be dismissed.']