O'Meara v The Queen

[2007] HCATrans 537

[2007] HCATrans 537

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S146 of 2006

B e t w e e n -

KENNETH IAN O’MEARA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 SEPTEMBER 2007, AT 9.32 AM  

Copyright in the High Court of Australia

GUMMOW J:   The applicant was convicted by the District Court of New South Wales of an offence of cultivating a commercial quantity of cannabis, and of two offences of unauthorised possession of a firearm.  He was sentenced to terms of imprisonment which have now been served. 

The applicant appealed to the New South Wales Court of Criminal Appeal against conviction on many grounds, all of which that Court rejected. The applicant seeks special leave to appeal in order to pursue a narrower range of grounds. None of these have merit. The most promising of them relates to the reception by the trial judge of identification evidence from Mr Zuchetti, a neighbour of the applicant's, despite the failure to hold an identification parade. However, since Mr Zuchetti had often seen the applicant over the years, the exception to the parade requirement established by s 114(2)(b) of the Evidence Act 1995 (NSW) applied: "It would not have been reasonable to have held such a parade." The applicant also complains that no direction was given under s 116 of the Evidence Act and says: "It is not in issue that no warning was given." This is not correct: the trial judge gave extensive directions about the special caution required in approaching identification evidence, including that of Mr Zuchetti, and the factors which might make it unreliable: see pp 20-23 and 197-202 of the summing up. In any event, any breach of the duty to warn under s 116 is of limited significance, since the applicant's approach to cross-examining Mr Zuchetti was not that he was mistaken, but that he had fabricated his evidence.

There was a strong circumstantial case against the applicant, who did not give evidence.  Were special leave granted, there are insufficient prospects of demonstrating error in the Court of Criminal Appeal's reasoning or any miscarriage of justice.  The application must be dismissed.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Justice Heydon and myself.

AT 9.34 AM THE MATTER WAS CONCLUDED