O'Hearn v The Queen - [2022] HCATrans 44

[2022] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S105 of 2021

B e t w e e n -
DAVID ANTHONY O’HEARN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 18 MARCH 2022, AT 2.30 PM

EDELMAN J: In accordance with the Court’s protocol for sitting remotely, I will announce the parties’ appearances.

MR J.S. STRATTON, SC appears with MS T.R.M. HENNESSY for the applicant. (instructed by Bannisters Lawyers)

MS H.R. ROBERTS, SC appears for the respondent. (instructed by the Office of the Director of Public Prosecutions (NSW))

EDELMAN J: Yes, Mr Stratton.

MR STRATTON: Your Honours, I read the affidavit of James Jephcott Lang affirmed on 23 July 2021. Your Honours, this appeal raises for consideration significant issues concerning the Evidence Act. In particular, it raises the question of what is the proof of the conviction of a witness in cross‑examination evidence of? At trial, the Crown called the former priest, Vincent Ryan, to rebut the contention in the defence case that the complainant MB may have mistakenly identified the applicant as a person who sexually assaulted him and that there was a reasonable possibility that the person who sexually assaulted him was Vincent Ryan.

Vincent Ryan gave evidence that he had pleaded guilty to and been convicted of sexually assaulting all 27 boys he had actually sexually assaulted, but he had not sexually assaulted MB. When he was asked if he was sure he had told the police about all his victims, he responded, quote:

“I am absolutely certain about that. I know who my victims were. I told the police about them all. There is no shadow of doubt in my mind. I have told everything there was. There is no way in the world I would leave anybody out and I wouldn’t forget. Those things are imprinted in my brain. I can’t get rid of them.”

When Vincent Ryan was asked in cross‑examination if he was guilty of outstanding charges of sexually assaulting two additional boys, he denied those charges quote, “absolutely”, unquote. The Crown’s contention, which gave the testimony of Vincent Ryan its strength, was that, in effect, Vincent Ryan was a sexual molester of children, but that he was an honest one.

Section 103 of the Evidence Act permits cross‑examination of a witness about matters which could substantially affect the credibility of a witness as an exception to the credibility rule, that is, section 102 of the Evidence Act.

EDELMAN J: Mr Stratton, could I just ask you, the appeal in relation to these provisions of the Evidence Act was not argued on the basis that in light of the fresh evidence of Mr Ryan’s convictions that, irrespective of their admissibility, his evidence at trial would have taken a very different course. In other words, the focus of the appeal was…

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.

Keep reading for free

Create a free CaseChat account to read O'Hearn v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] HCATrans 44
Decision Date

CaseChat Overview and Summary

The case of *O'Hearn v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, O'Hearn, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Full Court of the Supreme Court of Victoria, which dismissed his appeal. The High Court then granted special leave to appeal from that decision.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the question was whether the judge's summing up had sufficiently explained to the jury that they were entitled to find that the appellant had acted under a sudden or temporary loss of self-control, which was a crucial element of the defence of provocation as then understood.

Gleeson J, delivering the judgment of the High Court, held that the trial judge's directions were inadequate. His Honour reasoned that the jury might have been left with the impression that the defence of provocation required a more extreme or prolonged loss of control than was legally necessary. The legal principle applied was that provocation, to reduce murder to manslaughter, requires that the act of killing be done under such provocation as to cause a sudden and temporary loss of self-control, rendering the person incapable of exercising self-control. The judge's summing up, by failing to clearly articulate this, had deprived the jury of the opportunity to properly consider and apply the defence.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders