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O'Hare v DPP

O'Hare v DPP

Case [2000] NSWSC 430 22 May 2000

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CITATION: O'Hare v DPP [2000] NSWSC 430 revised - 4/12/2000

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 10165/2000

HEARING DATE(S): 8, 10, 11, 12 and 16 May, 2000

JUDGMENT DATE: 22 May 2000

PARTIES :

Timothy William O'Hare v Director of Public Prosecutions and Anor.

JUDGMENT OF: O'Keefe J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : S McCosker LCM

COUNSEL : C Cross (solicitor) - Plaintiff
Ms R Burgess - Defendant

SOLICITORS:
Abbott Pardy & Jenkins
342 Grey Street
Glen Innes NSW 2370
Tel: (02) 6732 2022
S E O'Connor
Solicitor for Public Prosecutions
265 Castlereagh Street
SYDNEY N S W 2000
Telephone: (02) 9285 8643

CATCHWORDS: Committal proceedings - Mandamus - Declaration - Evidence - Oral evidence by complainant - Special Reasons - Interests of Justice - Principles - Statutory construction - Discretion

LEGISLATION CITED: Justices Act 1902
Ss.48E, 48EA
Interpretation Act 1987, ss.5(2),9
Interpretation Act 1897, s.23
Bail Act s.22A
Conveyancing Act 1919, s.66G
Landlord and Tenant Amendment Act 1948, s.70

CASES CITED: DPP v Losurdo, Court of Appeal 23 September, 1998 (unreported)
Kennedy (1997) 94 A Crim R 341
B v Gould (1993) 67 A Crim R 297
Faltas v McDermid, Supreme Court, 30 July 1993 (unreported)
Bankinvest v Seabrook (1988) 14 NSWLR 711
R v War Pensions Entitlement Appeal Tribunal Ex Parte Bott (1933) 50 CLR 228
Ex Parte Hebburn; re Kersley Shire Council (1947) 47 SR (NSW) 416
Saffron v DPP (1989) 16 NSWLR 397
Barton v Berman (1980) 1 NSWLR 63
Grenvell Homes Pty Limited v Builders Licensing Board (1981) 2 NSWLR 608
Wentworth v Rogers (1984) 2 NSWLR 422
Craig v South Australia (1994-95) 184 CLR 163
Waterhouse v Gilmore (1988) 12 NSWLR 270
Bacon v Rose (1972) 2 NSWLR 793
Ex parte Cousens; Re Blacket (1947) 47 SR 145
Willessee v Willessee (1974) 2 NSWLR 275
Acs v Anderson (1974) 2 NSWLR 482
Connor v Sankey (1976) 2 NSWLR 570
Spautz v Williams (1983) 2 NSWLR 507
TS v George, Supreme Court 14 April 1998, unreported
Acuthan v Coates (1986) 6 NSWLR 472
Hilton v Hyde (Supreme Court, 29 April 1987, unreported)
Leahy v Price (Supreme Court 28 September 1998, unreported)
Re Jackson and the Conveyancing Act (1951) 52 SR (NSW) 42
Re Fettell (1951) 52 SR 221
Smith v Watson (1906) 4 CLR 802
MacDougall v Paterson (1851) 138 ER 672
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Ward v Williams (1953) 19 LGR190 (Full Court)
Ward v Williams (1954-1955) 92 CLR 496
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Williams v Hanson (1957) SR (NSW) 428
Childs v Kelly (1948) 65 WN (NSW) 141
Freeman v Stankovic (1960) 77 WN (NSW) 631
Regina v Harris, Supreme Court 18 April, 2000, unreported
Dietrich v The Queen (1992) 177 CLR 292
The Queen v Gun (1977) 17 SASR 165
Goldsmith v Newman (1992) 59 SASR 404
Baskerville v Martin (1967) SASR 156
Gassner v Frost…

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'Hare v DPP

Details

AGLC: O'Hare v DPP [2000] NSWSC 430
Case: [2000] NSWSC 430
Decision Date: 22 May 2000

CaseChat Overview and Summary

In the matter of O'Hare versus the Director of Public Prosecutions, the Federal Court of Australia was tasked with deciding whether the trial judge should have permitted a complainant in a sexual assault case to give oral evidence, in addition to her written statement. The case originated from committal proceedings where the complainant had provided a written statement to the police, which was read out in court, but she was not cross-examined on it. The complainant then chose to give oral evidence, leading to the defence's application to exclude her oral testimony, which was ultimately denied by the trial judge. The Director of Public Prosecutions appealed the decision on the grounds that the trial judge should not have allowed the complainant to give oral evidence.

The central legal issue before the court was whether the trial judge had discretion to permit a complainant to give oral evidence in addition to a written statement in sexual assault cases. The court examined statutory provisions and previous judicial decisions to determine whether the trial judge's decision was correct. The court considered whether the trial judge's decision to allow the complainant to give oral evidence was within the bounds of the statutory provisions and whether it was consistent with the principles governing the interests of justice. The court also assessed whether the trial judge's decision was an error of law and whether it could be quashed under the doctrine of mandamus.

The court concluded that the trial judge had discretion to allow the complainant to give oral evidence, but it was not an unfettered discretion. The court found that the trial judge's decision to permit oral evidence was within the bounds of the statutory provisions and was consistent with the principles governing the interests of justice. The court held that the trial judge's decision was not an error of law and could not be quashed. The court also noted that the trial judge had considered the relevant principles and exercised his discretion in a manner that was consistent with the statutory provisions and the interests of justice. The appeal was dismissed.

The final orders of the court were that the appeal was dismissed, and the decision of the trial judge to permit the complainant to give oral evidence was affirmed. The court also noted that the trial judge had exercised his discretion in a manner that was consistent with the statutory provisions and the principles governing the interests of justice. The court held that the trial judge's decision was not an error of law and could not be quashed. The complainant's oral evidence was therefore admissible in the trial.

Orders