O'Rafferty v The Queen - [2016] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

O’Rafferty v The Queen

Citation:

[2016] ACTCA 13

Hearing Date:

12 February 2016

Decision Date:

13 May 2016

Before:

Refshauge, Burns and Wigney JJ

Decision:

See [35].

Catchwords:

CRIMINAL LAW – Appeal and New Trial – where matter previously heard by Court of Appeal – unaddressed ground of appeal – matter remitted from the High Court of Australia – verdict unsafe and unsatisfactory – ground of appeal dismissed.

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT)

Cases Cited:

Libke v The Queen (2007) 230 CLR 559
M v The Queen (1994) 181 CLR 487

O’Rafferty v The Queen [2014] ACTCA 35

O’Rafferty v The Queen (No. 2) [2014] ACTCA 52

TI v The Queen [2015] ACTCA 62
WA v R [2011] ACTCA 4

Parties:

Kevin Henry O’Rafferty (Appellant)

The Queen (Respondent)

Representation:

Counsel

Ms A Francis (Appellant)
Ms M Jones (Respondent)

Solicitors

Aboriginal Legal Service (Appellant)
ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 39 of 2013

Decision under appeal:

Court:	ACT Supreme Court
Before:	Nield AJ
Date of Decision:	17 June 2013
Case Title:	R v O’Rafferty
Court File Number:	SCC 148 of 2012

REFSHAUGE J:

1. I have read the reasons to be published by Burns J. I have also read the additional reasons to be published by Wigney J.
2. I agree with the reasons of both their Honours and that, as a consequence, the appeal should be dismissed.
I certify that the preceding two [2] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Associate:
Date: 13 May 2016

BURNS J:

1.   On 17 June 2013, the appellant was found guilty after a trial by jury of one count of sexual intercourse without consent. On 25 July 2013, he was sentenced by Nield AJ to five years imprisonment with a non-parole period of three years. The appellant appealed from his conviction. On 21 August 2014, this Court, differently constituted to the present
proceedings, gave a decision on that appeal (O’Rafferty v The Queen [2014] ACTCA 35),
quashing the appellant’s conviction and ordering a new trial.
2.   In disposing of the appellant’s appeal on 21 August 2014, the Court regrettably
overlooked a ground of appeal alleging that the verdict was unsafe and unsatisfactory, resulting in a miscarriage of justice. If that ground of appeal were upheld, the appellant would have been entitled to the entry of a verdict of not guilty, rather than the order that there be a new trial.
3.    The Court subsequently determined that it did not have jurisdiction to re-open the appeal:
O’Rafferty v The Queen (No. 2) [2014] ACTCA 52. An appeal to the High Court resulted

in orders setting aside the order for a new trial, and remitting the matter to this Court for
determination of the outstanding ground of appeal.
4.    The remitted proceedings came before us on 12 February 2016 at which time we heard submissions…

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'Rafferty v The Queen

Details

AGLC: O'Rafferty v The Queen [2016] ACTCA 13
Case: [2016] ACTCA 13
Decision Date: 12 February 2016

CaseChat Overview and Summary

The applicants, O'Rafferty and others, sought to appeal against their convictions. The matter had been remitted from the High Court of Australia to the Court of Appeal of the Supreme Court of the Australian Capital Territory, following an unaddressed ground of appeal from a previous hearing. The central dispute concerned whether the verdicts reached against the applicants were unsafe and unsatisfactory.

The Court of Appeal was required to determine whether a specific ground of appeal, which had not been previously addressed, had merit. This ground alleged that the verdicts were unsafe and unsatisfactory, necessitating a new trial or acquittal. The court had to consider the evidence presented at trial and assess its impact in light of this unaddressed ground.

The Court of Appeal dismissed the ground of appeal, finding that the verdicts were not unsafe or unsatisfactory. The reasoning applied by the court, though not detailed in the provided text, led to the conclusion that the convictions should stand. The court ultimately upheld the original verdicts, notwithstanding the remittal from the High Court and the existence of the previously unaddressed ground of appeal.

Orders

Orders of the court

See [35].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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