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) Criminal Appeal Rules (NSW), r 4 |
Cases Cited: | Domican v The Queen (1992) 173 CLR 555 Maraache v R (2013) NSWCCA 199 |
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 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…
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- AGLC
- O'Rafferty v The Queen [2014] ACTCA 35
- Case
- [2014] ACTCA 35
- Decision Date
CaseChat Overview and Summary
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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