O'Brien v The Queen - [2019] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: O'Brien v R [2019] NSWCCA 187
Hearing dates: 27 May 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Before: Simpson AJA at [1]; Walton J at [85]; Adamson J at [86]
Decision:
(1)   Extend the time in which to appeal;
(2)   Grant leave to amend the notice of appeal filed on 21 December 2018;
(3)   Appeal against conviction allowed;
(4)   The convictions on each count set aside;
(5)   There be a new trial on each count.
The matter is to be listed in the District Court Arraignment List on 16 August 2019 at 9:30am.
Catchwords:
CRIMINAL PROCEDURE – trial – directions to jury – failure to direct the jury in accordance with Black v The Queen – failure clearly to respond to notes from the jury indicating inability to reach unanimity – whether undue pressure imposed on jury – whether trial miscarried

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5(1)(a)
Criminal Appeal Rules, r 4
Jury Act 1977 (NSW), ss 53B, 55F, 56
Jury Amendment (Verdicts) Act 2006 (NSW)

Cases Cited:
Alkhair v R [2016] NSWCCA 4
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Burrell v R [2007] NSWCCA 65; (2007) 190 A Crim R 148
CA v R [2019] NSWCCA 166
Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21
Hunt v R (2011) 81 NSWLR 181; [2011] NSWCCA 152
Ingham v R [2011] NSWCCA 88
Isika v R [2015] NSWCCA 304
R v Birks (1990) 19 NSWLR 677
R v Gallagher [1986] VR 219
R v Mills [1939] 2 All ER 299
RJS v R [2007] NSWCCA 241; (2007) 173 A Crim R 100
Timbery v R [2007] NSWCCA 355; (2007) 180 A Crim R 232
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52

Category: Principal judgment
Parties: Daniel O'Brien (Appellant)
Regina (Respondent)
Representation:
Counsel:
N Carroll (Appellant)
B Hatfield (Respondent)
Solicitors:
Archbold Legal (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/136658
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

04 October 2016

Before:

Hoy DCJ

File Number(s):

2014/136658

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 September 2016, the appellant was arraigned in the District Court on an indictment that charged him with three offences related to the robbery of the Thredbo Alpine Hotel on 12 March 2014. The trial exceeded its estimated length and on the eighth day, prior to counsel’s closing submissions, a note was received from the jury informing the trial judge that a juror had important forthcoming work commitments. An election was made not to discharge the juror at that stage and while the trial judge told the jury he intended to accommodate that juror’s commitment, the jury were not informed how or when that would occur.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Brien v The Queen

Details

AGLC: O'Brien v The Queen [2019] NSWCCA 187
Case: [2019] NSWCCA 187
Decision Date: 09 August 2019

CaseChat Overview and Summary

In the case of O'Brien v The Queen, the respondent sought a ruling on the propriety of the trial proceedings following O'Brien's conviction of murder. The appellant argued that the trial judge's directions to the jury were inadequate and failed to adhere to the principles set forth in the landmark case of Black v The Queen. Furthermore, the appellant claimed that the trial judge did not sufficiently respond to the jury's notes indicating their inability to reach a unanimous verdict, thereby imposing undue pressure on the jury and resulting in a miscarriage of justice.

The court was required to determine whether the trial judge's directions to the jury were in line with the established legal principles and whether the trial judge's failure to address the jury's notes constituted undue pressure. The court also needed to consider whether the trial's overall conduct resulted in a miscarriage of justice, warranting the quashing of the conviction.

The court held that the trial judge's directions to the jury did not adequately align with the principles set forth in Black v The Queen. The court found that the trial judge's failure to respond to the jury's notes indicating their inability to reach a unanimous verdict amounted to undue pressure, and this ultimately led to a miscarriage of justice. Consequently, the court quashed the conviction and ordered a new trial. The court emphasised the importance of clear and accurate directions to the jury, as well as the need for the trial judge to respond appropriately to any indications of difficulties in reaching a unanimous verdict.

Orders