O'Rafferty v The Queen - [2014] ACTCA 35

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	O’Rafferty v The Queen
Citation:	[2014] ACTCA 35
Hearing Date:	6 May 2014
DecisionDate:	21 August 2014
Before:	Murrell CJ, Penfold and Ross JJ
Decision:	1. The appeal is allowed, and the verdict and conviction are set aside. 2. There is to be a new trial.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Appeal and New Trial – defence case not properly put to jury by trial judge – miscarriage of justice – appellant lost a real chance of acquittal – appeal allowed – new trial ordered.
Legislation Cited:	Evidence Act 2011 (ACT), s 116 Supreme Court Act 1933 (ACT), ss 37O, 37O(2)(a)(iii) Court Procedures Rules 2006 (ACT), r 5531, Pt 6.2 Criminal Appeal Rules (NSW), r 4
Cases Cited:	Domican v The Queen (1992) 173 CLR 555 Maraache v R (2013) NSWCCA 199 Munro v The Queen [2014] ACTCA 11 R v Meher [2004] NSWCCA 355 Regina v Demiroz [2003] NSWCCA 146 RPS v The Queen (2000) 199 CLR 620
Parties:	Kevin Henry O’Rafferty ( Appellant) The Queen ( Respondent)
Representation:	Counsel Ms A Francis ( Appellant) Ms M Jones ( Respondent)
Solicitors Aboriginal Legal Service (NSW/ACT) Limited ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Numbers:	ACTCA 39 of 2013; SCC 148 of 2012
Publication Restriction:	Complainant’s name and identifying information
Decision under appeal:	Court: ACT Supreme Court Before: Nield AJ Date of Decision: 17 June 2013 Case Title: R v Kevin Henry O’Rafferty Court File Number: SCC 148 of 2012

The Court:

Introduction

Kevin O’Rafferty and Jason Dodd went to trial on an indictment containing four counts:

(a)two counts of sexual intercourse without consent by Mr O’Rafferty acting in company with Mr Dodd: and
(b)one count each of an act of indecency without consent and sexual intercourse without consent by Mr Dodd acting in company with Mr O’Rafferty.

All the charges related to the same complainant. The offences charged against Mr O’Rafferty involved respectively cunnilingus and digital penetration of the complainant’s anus.

On 17 June 2013, a jury found Mr O’Rafferty guilty of one of the charges of sexual intercourse without consent, but not guilty of the other. Mr Dodd was found guilty on both counts.

Grounds of appeal

Mr O’Rafferty appeals against his conviction, on the following grounds, as set out in the amended notice of appeal:

(a)The trial judge failed to properly put the defence case.
(b)The directions in relation to the complaint evidence gave rise to a miscarriage of justice.
(c)The trial miscarried by reason of the trial judge failing to direct the jury in relation to the dangers of identification evidence as required by section 116 of the Evidence Act 2011.
(d)The verdict is unreasonable.

Operation of s 37O

Section 37O of the Supreme Court Act 1933 (ACT) specifies the orders that may be made in a conviction appeal.
37O Orders on appeal
(1)The Court of Appeal has the following powers in relation to the order appealed…

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 [2014] ACTCA 35
Case: [2014] ACTCA 35
Decision Date: 21 August 2014

CaseChat Overview and Summary

O'Rafferty appealed to the Court of Criminal Appeal of New South Wales against his conviction for an offence. The central dispute on appeal concerned whether the trial judge had adequately put the defence case to the jury, and whether this failure constituted a miscarriage of justice.

The Court was required to determine whether the trial judge's summing up to the jury had properly presented the appellant's defence, and if not, whether this omission resulted in the appellant losing a real chance of acquittal. The ultimate question was whether a miscarriage of justice had occurred, warranting the setting aside of the conviction.

The Court reasoned that a trial judge has a duty to put the defence case to the jury in a way that is fair and comprehensible, particularly where the defence relies on a specific factual scenario or legal argument. In this instance, the Court found that the trial judge's summing up had failed to adequately articulate the appellant's defence, thereby preventing the jury from properly considering it. This failure was held to have deprived the appellant of a real chance of acquittal, leading to the conclusion that a miscarriage of justice had occurred.

Consequently, the Court allowed the appeal, setting aside the verdict and conviction, and ordered a new trial.

Orders

Orders of the court

1. The appeal is allowed, and the verdict and conviction are set aside.

2. There is to be a new trial.

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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