Regina v Frawley [2000] NSWCCA 340

New South Wales Court of Criminal Appeal

CITATION : Regina v Frawley [2000] NSWCCA 340 FILE NUMBER(S) : CCA 60082/95 HEARING DATE(S) : 21 August 2000 JUDGMENT DATE : 30 August 2000

PARTIES : Regina v Maurice Peter Frawley JUDGMENT OF : Heydon JA at 1; Smart AJ at 82; Ireland AJ at 83

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 88/91/0219 LOWER COURT JUDICIAL Abadee J OFFICER :

COUNSEL : D A Marr (Appellant) R D Cogswell SC/S Piedade (Respondent) SOLICITORS : Stephen Hodges (Appellant) S E O'Connor (Respondent) CATCHWORDS : CRIMINAL LAW - appeal against conviction and sentence - relationship evidence - voluntariness of record of interview - DNA evidence - appellant's instructions to counsel during trial allegedly disregarded - application of Rule 4 - appeal against sentence stated no grounds - appeal against conviction and sentence dismissed. LEGISLATION CITED : Criminal Appeal Act 1912 Gallagher v R (1986) 160 CLR 392 Penney v R (1998) 155 ALR 605 CASES CITED: R v Frawley (1993) 69 A Crim R 208 R v Murphy (1985) 4 NSWLR 42 Wilde v R (1988) 164 CLR 365 Wilson v R (1970) 123 CL 334 DECISION : Appeal against conviction and sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL

60082/95

HEYDON JA SMART AJ IRELAND AJ

30 August 2000

REGINA v Maurice Peter FRAWLEY JUDGMENT

1 HEYDON JA: Background

Shortly after midnight on the night of 6-7 May 1988 the appellant was found by police sitting near the corpse of his de facto wife, Janice Maree Goodwin, at their home in Umina. She had been punched, and she had suffered 35 stab wounds, one of which had severed her carotid artery and caused death. He was charged with murder. He was tried on that charge in May 1990 before Lusher AJ and a jury and convicted. At that trial he was not legally represented. An appeal, on which he was legally represented, succeeded on the ground that inadmissible evidence had been received: R v Frawley (1993) 69 A Crim R 209. On 2 August 1994, a second trial, at which he was legally represented, began before Abadee J and a jury. On 30 August 1994 he was convicted. On 6 December 1994 he was sentenced to life imprisonment. He appeals against that conviction and that sentence. 2 The evidence given by the accused in relation to events just before and just after the killing was as follows. In the 48 hours up to 6 pm on 6 May 1988 he drank 38 cans of beer and 6-8 glasses of wine. On 6 May he ingested three types of medication intended to relieve back pain, including Mogadon. He said that some time after 6 pm he decided to sleep in the car in order to relieve his back pain. His next recollection was that the victim said to him: "I have scratched all of your face". He remembered kneeling beside the victim, who said "Say my prayers" or "Help me say my prayers". He leant over and said "Hail Mary", "Our Father" and "Act of Contrition". The victim followed him in the prayers. He next remembered being on the back verandah holding a rope and trying to tie a knot. He then remembered cutting his right arm with a razor blade but dropping the razor blade. He could not remember telephoning a Roman Catholic priest, Father R J McCann, who alerted the police to the killing. He could not remember the arrival of the police officers at the house, nor leaving it by ambulance, nor being at the hospital to which it took him. He could not remember the questions asked or the answers given in a police record of interview. He could remember being photographed and charged (3/537-550). 3 The police evidence was that they arrived after a call from Father McCann. The police found the victim lying on her back in the hallway. The appellant was sitting nearby at a kitchen table. There were signs of a violent and lengthy struggle both downstairs and upstairs. 4 At the second trial, the arguments of the appellant which received most attention in evidence, addresses and summing up centred on the contention that he was so intoxicated or affected by drugs or both that, assuming that he had inflicted the wounds which caused the victim's death, he lacked the mental element necessary if murder were to be established. He contended that his acts were not voluntary or willed by reason of intoxication operating on a sound mind, or by reason of intoxication causing insanity. He contended that the Crown had failed to prove that he intended to kill the victim or inflict grievous bodily harm on her. He submitted that if the elements of murder had been made out, he was entitled to a verdict of manslaughter on grounds of diminished responsibility. He contended that if there was a reasonable doubt about his intention to kill the deceased or inflict grievous bodily harm on her, he was not guilty of manslaughter. But apart from these defences centring on his mental state, the accused also contended that the Crown had failed to prove that he committed the acts causing death. The trial judge gave the jury directions in relation to the burden of proof on the Crown in that respect by reference to the evidence bearing on the question (pages 25/26.8-27.1, 32.4, 32.8, 66.6-68.8, 71.9-72.8, 75.4-75.6, 78.1-91.5 and 120.1-123.5 of the summing up, and question 1 of the document handed to the jury entitled "Issues for the Jury To Consider In Arriving At Its Verdict").