O'Connor v The Queen

[2000] HCATrans 33

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M68 of 1999

B e t w e e n -

BRENDAN JOHN O’CONNOR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2000, AT 1.15 PM

Copyright in the High Court of Australia

KIRBY J:   The reasons that I am now going to announce are those which Justice Callinan and I have agreed upon.

The parties to this application have indicated that they do not seek to supplement their written submissions with oral argument.  The Court has considered the written submissions.

Because it is shown that the applicant, Brendan John O’Connor, was in custody at the relevant times, with consequent difficulty in obtaining assistance to make this application, the Court will dispense with the requirements of Order 69 rule 3(1) of the High Court Rules so as to permit the application to be heard out of time.

The Court of Appeal of Victoria dismissed the applicant’s appeal against his sentence of five years imprisonment (without eligibility for parole for three years of that sentence).  This sentence followed his conviction on a count of culpable driving.  The conviction occurred in the County Court of Victoria following a trial before a jury.  The count arose out of a driving incident on 21 July 1996, as a result of which Mr Gary Holmes, a police constable on his way to work, was killed. 

The applicant raises three points in his challenge.  The first complaint concerns the suggested failure of the Court of Appeal to detect error on the part of the sentencing judge in failing to take into account, in mitigation of the sentence, the delay which attended the commencement of the trial.  The Court of Appeal was correct in dismissing this ground.  The second complaint is that the Court of Appeal erred in refusing to admit into evidence a report of a psychologist, Ms Debra Smith, relating to the psychological condition of the applicant.  It was within the Court of Appeal’s discretion to reject this evidence for the reasons which it gave.  No error is shown in this regard.  The third complaint is that the Court of Appeal wrongly failed to correct the sentence as manifestly excessive.  So stated, this does not present a ground that would attract special leave to appeal to this Court.  There is, in any case, no substance in the point.

Accordingly, whilst leave to bring the application out of time is granted, the application is dismissed.  The Court orders that the outcome of the matter and the reasons of the Court be provided to both parties, including to Mr O’Connor who is in custody.

AT 1.17 PM THE MATTER WAS CONCLUDED