Mulvihill v R [2016] NSWCCA 259

Mulvihill v R [2016] NSWCCA 259

There was no error in the trial judge’s refusal to direct the jury on the complete defence of self-defence (i.e., 'second limb'), manslaughter by unlawful and dangerous act, or provocation because the evidence did not support such directions; no unfairness or miscarriage of justice attended the summing up, prosecutorial comments, or handling of the applicant’s wife’s evidence; and the sentence was properly reached considering all relevant and proffered mitigating and aggravating factors.

Parties
Applicant: Paul Darren Mulvihill; Respondent: Regina
Jurisdiction
Australia
Judgment Date
25 November 2016
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment Following Conviction and Sentence; Application for Extension of Time, Leave to Appeal, and Appeal Decision
Outcome
Conviction appeal dismissed. Sentence appeal dismissed. Extension of time and limited leave to appeal granted.
Legal Topics
Murder, Conviction Appeal, Sentence Appeal, Self Defence, Manslaughter (unlawful and Dangerous Act), Provocation, Directions to Jury, Post Offence Conduct, Rule in Browne V Dunn, Evidence – Spouse Compellability, Consciousness of Guilt
Criminal Law Murder Conviction Appeal Sentence Appeal Self Defence Manslaughter (unlawful and Dangerous Act) Provocation Directions to Jury +4 more

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Parties

Paul Darren Mulvihill

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment Following Conviction and Sentence; Application for Extension of Time, Leave to Appeal, and Appeal Decision

Legal Issues

  1. 1 Did the trial judge err in directions on self-defence, including the 'second limb'?
  2. 2 Was the trial judge required to leave manslaughter by unlawful and dangerous act to the jury?
  3. 3 Should provocation have been left to the jury?

Ratio Decidendi

There was no error in the trial judge’s refusal to direct the jury on the complete defence of self-defence (i.e., 'second limb'), manslaughter by unlawful and dangerous act, or provocation because the evidence did not support such directions; no unfairness or miscarriage of justice attended the summing up, prosecutorial comments, or handling of the applicant’s wife’s evidence; and the sentence was properly reached considering all relevant and proffered mitigating and aggravating factors.

Court Disposition

Conviction appeal dismissed. Sentence appeal dismissed. Extension of time and limited leave to appeal granted.

Orders

  • Extend time for filing of notice of appeal/application for leave to 22 April 2016.
  • Grant applicant leave to appeal conviction on grounds 1 and 2 of notice of appeal dated 22 April 2016.