O'Grady v The Queen - [2012] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O'Grady v R [2012] NSWCCA 62
Hearing dates: 30 September 2011
Decision date: 13 April 2012
Before: Whealy JA
Hislop J
Latham J
Decision:
Appeal against conviction dismissed

Legislation Cited: Crimes Act 1900
Evidence Act 1995
Cases Cited: RPS v R [2000] HCA 3 ; 199 CLR 620
Azzopardi v The Queen [2001] HCA 25 ; 205 CLR 50
Dyers v R [2002] HCA 45
Category: Principal judgment
Parties: Andrew William O'Grady - (Appellant)
Regina - (Crown Respondent)
Representation: Counsel
G Wendler - (Appellant)
M Cinque - (Crown Respondent)
Solicitors
Saba El-Hanania Lawyers - (Appellant)
S Kavanagh Solicitors for Public Prosecutions - (Crown Respondent)

File Number(s): 2009/9964
Decision under appeal

Date of Decision:

2010-09-17 00:00:00

Before:

HG Murrell SC DCJ

File Number(s):

2009/9964

Judgment

WHEALY JA : I agree with Latham J and with the order proposed by her Honour.

HISLOP J : I agree with Latham J.

LATHAM J : The appellant appeals against his conviction before a jury on one count of specially aggravated break enter and steal in company, pursuant to s 112(3) of the Crimes Act 1900. The circumstances of special aggravation were constituted by the wounding of the victim of the offence, who was the occupant of the relevant apartment. The offence carries a maximum penalty of 25 years imprisonment. There is no appeal against sentence.

The Crown case against the appellant consisted principally of evidence from a co-offender (Mr Puha) and the presence of the appellant's fingerprint and palm print on the inside of the front door to the apartment. The appellant did not give or call evidence on his behalf.

There are two grounds of appeal that are inter-related. The second ground of the appeal maintains that there has been a miscarriage of justice occasioned by the closing address of the trial advocate, in that it was submitted that there was no innocent explanation for the presence of the fingerprint and palm print. This, it is said, constituted a contravention of the prohibition against any comment by the Crown to the effect that an accused failed to give evidence : s 20 Evidence Act 1995.

The first ground of the appeal claims that the trial judge erred in purportedly repeating the Crown's submission to the jury that they might more readily accept the prosecution case in the absence of an explanation for the presence of the fingerprint and palm print.

Both grounds call for a consideration of the case against the appellant and the context within which these remarks were made.

The Evidence at Trial

In the evening of 11 May 2008, Bradley Carter and Robert Puha met at the latter's home in Concord where they consumed alcohol and smoked ice. Between 8pm and 10pm, a man known to Mr Puha as "Andrew" or "Ace" joined them. Mr Puha had only met Ace once or twice in the preceding weeks and had provided Ace with his phone number.

Some time after…

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'Grady v The Queen

Details

AGLC: O'Grady v The Queen [2012] NSWCCA 62
Case: [2012] NSWCCA 62
Decision Date: 13 April 2012

CaseChat Overview and Summary

In this case, Andrew William O'Grady appealed against his conviction for specially aggravated break enter and steal in company, with wounding, under section 112(3) of the Crimes Act 1900. The case against O'Grady relied primarily on the evidence of a co-offender, Mr Puha, and the presence of O'Grady's fingerprint and palm print on the inside of the front door to the apartment. O'Grady did not give or call evidence on his behalf. The appeal raised two inter-related grounds: first, that the trial judge erred in suggesting that the jury might more readily accept the prosecution case in the absence of an explanation for the presence of the fingerprint and palm print; and second, that there had been a miscarriage of justice occasioned by the closing address of the trial advocate, who suggested that there was no innocent explanation for the presence of the fingerprint and palm print, which was a contravention of the prohibition against any comment by the Crown to the effect that an accused failed to give evidence.

The Court found no substance in the second ground of appeal, as the reference to an "innocent explanation" did not arise in the context of a discussion about the absence of any evidence or explanation from O'Grady. The Court also dismissed the first ground of appeal, as the trial judge's comment was made in terms of a failure to offer an explanation, rather than a failure to give evidence. The trial judge gave adequate directions to the jury about the onus of proof, the absence of any obligation on O'Grady to give evidence, and the fact that his failure to give evidence was not an admission and did not fill gaps in the prosecution case.

The appeal against conviction was dismissed, and the Court upheld the conviction and sentence imposed by the trial judge. The Court found that the evidence presented at trial was sufficient to establish O'Grady's guilt beyond reasonable doubt, and that there was no miscarriage of justice in the trial proceedings. The Court emphasised the importance of ensuring that the jury is not improperly influenced by the failure of an accused to give evidence or provide an explanation for their presence at the scene of the crime, and that the trial judge's directions to the jury were sufficient to protect O'Grady's right to silence.

Orders