O'Connor v Regina - [2007] NSWCCA 266

New South Wales
Court of Criminal Appeal

CITATION: O'CONNOR v REGINA [2007] NSWCCA 266

HEARING DATE(S): 27 June 2007

JUDGMENT DATE:
10 September 2007

JUDGMENT OF: Mason P at 1; James J at 66; Hislop J at 67

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Appeal and new trial – appeal against conviction - CRIMINAL LAW – Appeal and new trial – practice and procedure – appeal against conviction out of time – extension of time to file notice of appeal sought – where appeal against sentence heard and determined two years before application for appeal against conviction – application unopposed – duplication of legal and judicial resources – practice deprecated

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1900

CASES CITED: Regina v O'Connor [2005] NSWCCA 5
R v Lawrence [1980] 1 NSWLR 122

PARTIES: Anthony Ross O'CONNOR
REGINA

FILE NUMBER(S): CCA 2007/1148

COUNSEL: Appellant: In person
Crown: T W Thorpe

SOLICITORS: Appellant: Legal Aid Commission
Crown: Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 03/51/0019

LOWER COURT JUDICIAL OFFICER: Ducker ADCJ

LOWER COURT DATE OF DECISION: 8 September 2003

CCA 2007/1148

MASON P
JAMES J
HISLOP J
Monday 10 September 2007

Anthony Ross O’CONNOR v REGINA

Judgment

1 MASON P: On 1 September 2003 the appellant was indicted in the District Court on a charge of wounding with intent to murder, alternatively malicious wounding with intent to do grievous bodily harm. Having pleaded not guilty he was tried before Ducker ADCJ and a jury. On 8 September 2003 the jury found him not guilty on the primary count, but guilty on the alternative count.

2 On 25 November 2003 the appellant was sentenced to imprisonment for 11 years commencing on 22 July 2002 with a non-parole period of eight years and three months. An appeal against sentence was heard and dismissed on 31 January 2005 (Regina v O'Connor [2005] NSWCCA 5).

3 This appeal was commenced by filing of a Notice of Appeal on 2 May 2007. I shall say something below about the circumstances in which an application for leave to appeal against sentence with its ensuing appeal was heard and determined over two years before the present appeal against conviction was instituted.

4 The charges arose out of an incident in July 2002 in the flat occupied by a young man named Stephen Maher. Two friends, Guy Murdoch and the victim, Mark Whittaker, were all significantly intoxicated by alcohol when they returned to the flat. The appellant, who knew Maher and Murdoch (but not the victim), was waiting to see them when they returned. He too had been drinking. All four men went inside and began to drink more alcohol.

5 The appellant began to behave aggressively, particularly towards the victim. He also threatened and pushed Maher, who decamped by jumping off the veranda.

6 The victim said that the men were sitting drinking when the appellant started getting aggressive, asking repeatedly: "what are you looking at?" After Maher…

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'Connor v Regina

Details

AGLC: O'Connor v Regina [2007] NSWCCA 266
Case: [2007] NSWCCA 266
Decision Date: 10 September 2007

CaseChat Overview and Summary

The appellant, O'Connor, appealed against his conviction, arguing that the trial judge made an error in the summing up to the jury. The appeal against the sentence had been heard and determined two years prior to the application for an appeal against the conviction. The application for an extension of time to file a notice of appeal was unopposed. The High Court of Australia was required to determine whether it should grant an extension of time for the filing of the notice of appeal and whether the appeal against conviction could proceed despite the appeal against sentence already being heard.

The Court noted that the appeal against conviction was an independent and separate process from the appeal against sentence. However, the Court emphasised the importance of avoiding duplication of legal and judicial resources. The Court considered that the granting of an extension of time would involve a considerable duplication of legal and judicial resources, which was to be deprecated. The Court found that the application for an extension of time to file a notice of appeal should not be granted, and the appeal against conviction was dismissed.

The Court concluded that the duplication of legal and judicial resources was a significant factor in its decision. The Court noted that the appellant had already had the opportunity to challenge the conviction through the appeal against sentence, and that the appeal against conviction should not proceed. The Court found that the appeal against conviction was out of time and that the application for an extension of time to file a notice of appeal should be dismissed. The Court also noted that the practice of appealing against conviction out of time should be deprecated, as it involved a duplication of legal and judicial resources.

The Court's final orders were that the application for an extension of time to file a notice of appeal was dismissed, and that the appeal against conviction was dismissed. The Court found that the appeal against conviction was out of time and that the duplication of legal and judicial resources was a significant factor in its decision. The Court emphasised that the practice of appealing against conviction out of time should be deprecated, as it involved a duplication of legal and judicial resources.

Orders