O'Hara v The Queen

[2006] HCATrans 167

[2006] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M113 of 2005

B e t w e e n -

MICHAEL JOHN O’HARA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 APRIL 2006, AT 1.48 PM

Copyright in the High Court of Australia

HAYNE J:   The applicant seeks special leave to appeal against the orders of the Court of Appeal of the Supreme Court of Victoria.  By those orders, Batt, Buchanan and Vincent JJA dismissed the applicant’s appeal against his conviction of 18 counts of making a false document with the intention of using it to the prejudice of another.  The charges against the applicant related to allegations that the applicant had constructed false documents in order to try and sell two pistols as weapons in the possession of Adolf Hitler and Eva Braun in Hitler’s bunker in Berlin in 1945.  The applicant was sentenced to six months imprisonment, wholly suspended for two years.

The Court of Appeal held that the trial judge’s direction to the jury on falsity and prejudice was unsatisfactory.  However, in relation to falsity, the Court of Appeal found that there was no potential for confusion in the minds of the jury from the directions given and therefore no miscarriage of justice occurred.  Further, even though irrelevant forms of prejudice were referred to by the trial judge, this did not compromise the verdicts because the trial judge drew the jury’s attention to the prosecution case and indicated the type of prejudice asserted.  The Court of Appeal concluded that the verdicts were amply supported by the evidence and ultimately could not sensibly be described as unsatisfactory in the particular circumstances of the case.

Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

The applicant’s draft notice of appeal appears to complain about the conduct of the trial and argue that the applicant lacked the requisite intention to commit any offence.  The written submissions reiterate these grounds and also refer to the acknowledgment by the Court of Appeal that the manner in which the issues of prejudice and falsity had been left to the jury was unsatisfactory.  It is contended that this finding warrants intervention by this Court.

Although the Court of Appeal found that the trial judge’s directions were in some respects unsatisfactory, the Court went on to conclude, correctly, that the jury would have been sufficiently aware of the questions to be determined, the trial judge made detailed references to both the prosecution case and the defence case, the Crown case was strong and there had been no miscarriage of justice.  The prospects of success of this application are insufficient to warrant a grant of special leave to appeal.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 1.51 PM THE MATTER WAS CONCLUDED