O'Sullivan v The Queen

[2021] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

O’Sullivan v R [2021] NSWCCA 41

Hearing dates:

3 March 2021

Decision date:

19 March 2021

Before:

Basten JA at [1];
Harrison J at [32];
Adamson J at [33]

Decision:

(1) Refuse leave to appeal pursuant to Criminal Appeal Rules, r 4, with respect to the sole ground in the application for leave to appeal.

(2)   Dismiss the application for leave to appeal.

Catchwords:

CRIME – appeal – miscarriage of justice – misstatement of prosecution case by trial judge – whether misstatement was significant in a material respect

CRIME – violent offences – wound with intent to cause grievous bodily harm – glassing with empty bottle – second possible offender present – whether prosecution had excluded possibility that other person responsible for attack

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Appeal Rules (NSW), r 4

Cases Cited:

R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373

Category:

Principal judgment

Parties:

Solomen O’Sullivan (Applicant)
Regina (Respondent)

Representation:

Counsel:
A Moutasallem (Applicant)
M Kumar (Respondent)

Solicitors:
Pinnacle Lawyers (Applicant)
Solicitor of Public Prosecutions (Respondent)

File Number(s):

2018/163292

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 September 2019

Before:

Buscombe DCJ

File Number(s):

2018/163292

Judgment

1. BASTEN JA: In the early hours of 20 May 2018 there was an altercation between two groups of men outside a 7-Eleven store at Windsor on the north-western outskirts of Sydney. Three men who arrived in a car together were charged with several offences, including assaults, wounding and affray. One of the men, the applicant, Solomen O’Sullivan, was charged with four offences. The first charged related to an affray against three other men, named Strauf, Krha and Moeckel. The applicant entered a plea of guilty in relation to that charge. He was also charged with an assault occasioning actual bodily harm in company on Mr Moeckel. A jury found him not guilty on that charge. The applicant was further charged with two offences of wounding with intent to cause grievous bodily harm, the victims being Mr Strauf (count 3) and Mr Krha (count 4). He was found guilty of each of those offences. The present application, seeking leave to appeal against conviction, is limited to count 4. The sole ground of appeal was that a miscarriage occurred as a result of the trial judge misstating the prosecution case in a material and significant respect.

2. That Mr Krha was “glassed”, that is struck on the head with a broken bottle, was not in dispute. He suffered cuts and abrasions to the left side of his head which were later found to contain fragments of glass. The sole issue in the case turned on which of two men had committed the act. There was no reliance by the prosecution on joint criminal enterprise. That may have been because it was quite unclear as to why the two groups of men were fighting.

3. As counsel for the applicant properly accepted, he needed to establish that (i) the judge had misstated the prosecution case and (ii) the misstatement was significant in a material respect. In exploring the second point with counsel, the Court inquired as to whether the real issue might not be the mistake in the summing up, but whether the prosecution had proved to the criminal standard that it was the applicant and not another man who struck Mr Krha. If that were the case, the relevant ground of appeal would have been that the verdict was unreasonable and could not be supported on the evidence, within the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW).

4. Counsel for the applicant, clearly aware that there might be a different way of approaching the appeal, stated that he had considered an unreasonable verdict ground but had elected not to pursue it. Following the discussion with the Court, he proposed that he would reconsider his election while counsel for the Director was addressing. He returned to the issue in reply and adhered to his earlier decision.

5. The specific ground that was pursued encountered two procedural hurdles. First, not being a ground raising a question of law alone, it required leave pursuant to s 5(1) of the Criminal Appeal Act. Secondly, because no objection had been taken to the judge’s directions at the trial, leave was required pursuant to r 4 of the Criminal Appeal Rules (NSW). With respect to r 4, the applicant sought to read an affidavit of counsel who had appeared at the trial explaining why he had not questioned the misdirection. He did not suggest that he failed to appreciate the misstatement at the time, but rather said that, to the extent it was inconsistent with his own address to the jury, he thought the trial judge had “ruled against my submissions.” He said that “[i]t did not occur to me that I should ask again to have the matter resolved in the appellant’s favour.” It being no part of the trial judge’s duty to resolve factual matters, it is not clear what these statements were intended to convey. It may be accepted, however, that there was no forensic choice not to object. In any event, it was not a matter which required further exploration in this Court. For reasons which will be outlined below, the misstatement of the prosecution case was minor; however, if the judge’s statement was misunderstood as stronger than its express terms suggested, it was not an error which caused the applicant to lose a chance of acquittal reasonably open to him in the circumstances.

6. In order to explain the latter aspect of that conclusion, and to identify why counsel for the applicant was correct in not pursuing an unreasonable verdict ground, it will be appropriate to outline the evidence in a little more detail than would be required by the confined terms of the pleaded ground.

Circumstances of offending

7. The prior history of interactions between the two groups of men and the circumstances in which they converged on the 7-Eleven at Windsor in the early hours of 20 May 2018 remain obscure. It was not explained by the victims and none of the accused gave evidence.

8. Strauf, Krha and Moeckel had been drinking together for many hours prior to the altercation. At one point, Mr Strauf and Mr Krha were “shadow boxing” but Mr Strauf struck Mr Krha on the chin, knocking him to the ground. At about 12:45am on 20 May, Mr Strauf’s wife, Racheal Strauf, received a phone call from Strauf’s sister asking her to collect her husband, who had drunk too much. When Ms Strauf saw Mr Krha he was in a confused state and was told that he may have lost consciousness at some point, she decided he should go to hospital. (Ms Strauf was a nurse by occupation.) On the way Mr Krha insisted he would not go to the hospital. On getting out of the car he walked into the yard of the 7-Eleven where there were petrol bowsers.

9. What happened thereafter was in part captured by CCTV cameras at the 7‑Eleven. The camera footage showed Mr Krha taking his shirt off next to a petrol bowser and directing water from a tap over his head and shoulders. He can then be seen walking across the front of the 7-Eleven store and out of sight.

10. Very shortly after Mr Krha walked out of the vision of the camera, a car drove into the area where he had been washing. Three men got out of the car. A large man identified as the applicant got out of the front passenger seat. He was carrying a bottle (probably containing beer) which he emptied on to the ground, holding the bottle upside down, as he walked in the direction taken by Mr Krha. Another large man identified as Brandon Bennett also got out of the car and followed the applicant. His hands were free, but it was said that he could be seen placing a bottle in his trouser pocket. The prosecution case was that the attack which formed the basis of count 4 took place very shortly thereafter, during a period of about 30 seconds when the applicant and Mr Bennett were out of the camera’s view.

11. The applicant and Mr Bennett were both large men wearing black T-shirts. The applicant was described as being of Islander extraction; Bennett was not. The third male in the car was the applicant’s brother, Ma’amoloa O’Sullivan. Although he was also of Islander extraction, he was a thin man and is conspicuous in the CCTV footage by reason of his white cap. He did not get out of the car until after the other two men had disappeared out of the vision of the camera and kept looking in their direction but did not follow them at that stage. If that was when the assault occurred, the culprit was either the applicant or Bennett.

12. The prosecutor also adduced evidence from a Mr Kasula, who was, on the day in question, working as a console operator at the 7-Eleven. He witnessed events on the forecourt of the 7-Eleven and filmed part of the affray on his mobile phone. He described Mr Krha as having an altercation with a man who fitted the description of the applicant, [1] although the timing of that event was not clear.

    1. Tcpt, 29/05/19, pp 412(40)-413(8).

13. Mr Krha gave evidence that he was hit with the bottle and did not know who hit him. Indeed his evidence was that he did not remember anything about the time he was at the 7-Eleven until he woke up with a pain to the left side of his head. [2] However, he said in a statement to police that he could “just remember a big guy which I describe as an Islander, solid build standing up in front of me.” [3] This description was consistent with the appearance of the applicant, but not the appearance of Mr Bennett.

    2. Tcpt, 23/05/19, p 86(32)-(45).

    3. Tcpt, 27/05/19, p 149(1)-(8).

14. It may have been significant for the defence case that when Bennett accompanied the applicant in the direction of Krha, he had a bottle in his pocket. Thus, if both men had bottles, it was possible that either could have caused the injury to the left side of Krha’s head with a broken bottle.

The addresses at trial

15. The prosecutor’s submission which it is said the judge misstated was in the following terms, describing what could be seen on the CCTV footage: [4]

“He [Mr Krha] walks off screen to what the Crown submits you would find is the exit driveway of the 7‑Eleven. So he's arrived by walking through the entry driveway and he's walked out through the exit towards the exit driveway. Within seconds of Mr Krha walking off screen to the driveway, the vehicle – the green Commodore arrives. Very shortly after the green Commodore arrives, Solomen O'Sullivan exits the vehicle from the front passenger seat. He's carrying a bottle in his hand that contains liquid, which he tips out, commencing to bring out the liquid almost immediately upon exiting the vehicle and tips that liquid out as he walks around the vehicle and he walks across off screen to the area where Mr Krha had walked seconds before.

Mr Bennett and Ma'amoloa O'Sullivan also walked over, but were not – didn't walk across straight away with Mr Solomen O'Sullivan. Within a very short period of time of going off screen, Solomen O'Sullivan and Ma'amoloa O'Sullivan and Brandon Bennett returned to the vehicle. There's some interaction that can be viewed between the three men at the Commodore. Very shortly after that, Brandon Bennett and Ma'amoloa O'Sullivan walk over to the off‑screen area, which the Crown says you will find is the driveway area. When Mr Bennett is at the car, before he walks over, he's observed to have a bottle in his hand.

And the Crown says you will see that on the screen. He was asked questions about that by the police. By the time he walks past the camera, and past the vehicle toward the off‑screen area, he can't be seen to be carrying anything, but he is observed to place his hood up over his head. At that stage, Ma'amoloa O'Sullivan is walking with Brandon Bennett, and at that stage nothing is seen in his hands. A short time after that, Solomen O'Sullivan is observed to do certain actions around the car, and ultimately he's observed to take another bottle from the car to walk to the very edge of where the camera caught the footage to bend down and to engage in an action of striking, what appears to be a striking motion on the ground, and you see some material fly out to the back of Mr O'Sullivan as he's doing that.

The Crown submits, that on viewing that footage, you would draw the inference that Mr Solomen O'Sullivan is smashing the bottle that he's just gotten out of the car and it is glass that's flown out as he's done that. Mr Ma'amoloa O'Sullivan runs [from] the off‑screen area back to the car, opens the car door, retrieves a bottle, and the Crown submits you will see the bottle clearly in his hands, and then runs back to the off‑screen area. And toward the end of that footage, Tenelle O'Sullivan [the driver] is seen walking across the bottom of the screen. So the Crown submits you'd find that's after she's gone to the shop.”

4. Tcpt, 04/06/19, pp 660(32)-661(22).

16. It should be observed that this submission was silent as to whether Mr Bennett had a bottle when he first followed the applicant in the direction Mr Krha took. The only reference to him having a bottle was at a point subsequent to the men returning to the car after the first movement out of camera range.

17. Counsel for the applicant addressed the specific issues with respect to count 4 in two separate passages. The first read as follows: [5]

“Ultimately the difficulty in this count 4 is it is clear from the footage of the 7-Eleven pumps that there is an opportunity for others, and I'll be more specific. There is a large opportunity for the injury to have been occasioned to Mr Krha whether by accident caused by himself or by others or another person. That just hasn't been negated and disproved beyond a reasonable doubt. What you'll see from the footage of the 7-Eleven pumps is that there is a man who from the rear passenger seat on the passenger side that is largely consistent with Mr Bennett having the opportunity to commit an act that caused the injury the subject of count 4. Mr Bennett is not before the Court in relation to that. However, the issue is that the Crown have not negated or disproved what is a reasonable possibility arising from that evidence that he had that opportunity and the charge cannot be made out beyond a reasonable doubt.”

Nothing is made of the fact that both men were carrying bottles, if that can in fact be seen on the CCTV footage.

5. Tcpt, 04/06/19, p 699(29)-(40).

18. The second way in which counsel dealt with the matter was to suggest to the jury that the attack on Mr Krha which constituted count 4 did not occur at the time immediately after the applicant arrived at the 7-Eleven and walked, emptying a bottle, in the direction of Mr Krha, but in fact occurred at a later stage when there were other men present and there was an affray, when the applicant had a second bottle which he could just be seen breaking on the ground as he approached the group. [6]

“Looking at the evidence of Mr Kasula, one of the key things I'd ask you to consider is that – particularly in count 4, one of the difficulties you may find is that you have – you may have some difficulty determining when, in fact, the injury was occasioned to Mr Krha. And you were asked by the Crown to look at a witness' evidence and try and compare it to other witnesses' evidence or other sources of evidence, such as CCTV, and to see if you could find some corroboration. When looking at Mr Kasula's evidence, one of the things that you should bear in mind is that you should, if you can, make an attempt to compare his evidence. In particular, I'm here to ask that you examine what you can be satisfied as to what Mr Solomen O'Sullivan did in – as far as cross‑referencing that to the footage.

His evidence was that he observed a large Pacific Islander male, the one that came from the passenger seat. He observed him get out, speak to what appears to be Mr Krha. There was some discussion and then a fight broke out between the two. And what he observed was that that male from the passenger seat break a bottle on the ground, lunge at the chest of what appears to be Mr Krha and miss. The immediate next thing that happened was that Mr Krha ran away up the footpath, and that Mr – what appears to be Mr Solomen O'Sullivan if one looks at the descriptions and the placement in the car, went back to the Holden Commodore.

In my submission, it appears that you can discern that from the footage. You may consider the accuracy of Mr Kasula and whether he had an opportunity to view the CCTV, and whether he's been assisted in his accuracy about the – where each individual was placed in the car, what they did once they got out of the car as far as reference to the CCTV, but most particularly, and most importantly, the aspect of his evidence is that you may cross‑reference that and look at a particular point in the footage where the man from the passenger seat has a particular – appears to retrieve what looks consistent with a glass bottle, crouched down. He’s mostly off screen.

However, it’s clear that the other two co‑accused are also off screen. And then there’s some material that comes backwards into the screen. It’s not clear what happened. However, you must consider whether that was the incident that was described by Mr Kasula, where, although Mr Kasula asserts that he lunged at Mr Krha and missed, you may think that that’s actually depicted on the footage. After that, the evidence seems to intersect, as far as that person from the passenger seat returning to the Holden Commodore and spending some time in what appears to be him smoking a cigarette. It’s after that that other events transpire. However, I’ve asked that you consider that Mr Kasula gave evidence at length about this person having subsequently thrown away the remains of the bottle that he had.”

It may be that, in accepting the prosecution case, the jury rejected the later attack proposed by the defence. It is also possible that they accepted that Mr Kasula saw the applicant attack Krha with a broken bottle, but concluded that he didn’t miss.

6. Tcpt, p 05/06/19, pp 717(43)-718(35).

The judge’s summing up

19. The substance of the judge’s summing up commenced with reference to the individual counts in the indictment and the elements of the offences which the prosecution was required to establish beyond reasonable doubt. The judge then turned to the particular offences and summarised the prosecution case. In the course of dealing with count 4, he stated, in the passage upon which the applicant relies in this Court: [7]

“The Crown case is that the man who leaves the front passenger seat of the green Commodore is Mr Solomen O'Sullivan and that he leaves the car with a bottle in his hand, which he empties, and walks in the direction of where Mr Krha had walked. That he initially walked there on his own, that the other two accused, on the Crown case, walked in that direction shortly afterwards and the Crown argues that at that point in time it can be seen in the CCTV footage that the other two accused do not have bottles with them. That the Crown points to the evidence that when Christopher Strauf and Racheal Strauf find Mr Krha he has blood on his face and he says to them words like, ‘They glassed me or they bottled me,’ or, ‘They glassed me with – got me with a bottle.’

The Crown also points to the evidence of Mr Krha that when he woke up at 7‑Eleven he had pain to the left side of his face and a larger man was standing over him and he saw two other men, one of whom he described as being tall and skinny who had a cap on. The Crown says that man was Ma'amoloa O'Sullivan. The Crown also relies upon the evidence of Mr Kasula that the man who washed his head, who the Crown says was Mr Krha, appeared to have a conversation with a large man who came out of the Commodore and that they suddenly commenced fighting.

The Crown argues that the large man was Mr Solomen O'Sullivan. The Crown also relies upon the evidence of glass being found in the wound in Mr Krha's cheek. The Crown relies upon the medical evidence you heard about Mr Krha's injuries to prove that they amount to a wound.”

7. Summing up, 05/06/19, pp 18-19.

20. The incorrect statement is the brief reference that “the Crown argues that at that point in time it can be seen in the CCTV footage that the other two accused do not have bottles with them”, italicised in the first paragraph of the passage set out above.

21. The address by the prosecutor divided the events into two stages. In the first stage, “very shortly after the green Commodore arrives”, reference is only made to the applicant exiting the vehicle from the front passenger seat, carrying a bottle which he empties of liquid almost immediately upon exiting the car. The other two men are described as also walking over in the same direction, but not straightaway with the applicant. They are then described as returning to the vehicle. In other words, although it was not correct to say that the prosecutor submitted that the other men did not have bottles when they first went in the direction of Mr Krha, following the applicant, the prosecutor did not describe them as having bottles. At no stage did the trial judge purport to describe what the CCTV footage revealed, as opposed to what the prosecutor (and in a different passage of his summing up, counsel for the accused) described it as showing.

22. In order to demonstrate a significant error, the applicant sought to rely on a positive inconsistency in the judge’s statement. In written submissions, counsel for the applicant relied on the passage in the prosecutor’s address as correctly stating, “[w]hen Mr Bennett is at the car, before he walks over, he’s observed to have a bottle in his hand.” If that was intended to suggest that the prosecutor affirmatively accepted that Mr Bennett had a bottle in his hand before leaving the car on the first occasion (when the attack is said to have occurred), that is not, in my view, how the address would have been understood. Rather, it referred to the time after the men had returned to the car and then, for a second time, walked over towards the driveway where Mr Krha was attacked.

23. It may be accepted that the judge was in error in saying that the prosecutor had stated that from the CCTV footage Mr Bennett could be seen not to have a bottle with him. In fact, the prosecutor was silent as to that matter. Whether Mr Bennett could indeed be seen to have a bottle at that point, as the applicant seemed to contend in this Court, was a matter for the jury viewing the CCTV footage. There was no common ground that he did. Nor was it a point which counsel for the applicant raised before the jury in his address. He did not seek to make any point about Mr Bennett having a bottle either in his hand or in his pocket when he first followed the applicant towards Mr Krha.

24. Having regard to all the circumstances, the mistake in expressing the prosecutor’s silence as an assertion of a negative would not have affected the jury. As the respondent submitted, the summing up was otherwise undoubtedly fair, balanced and impartial. If the prosecutor had told the jury that Mr Bennett was not carrying a bottle when he left the car on the first occasion, it would in any event have been a matter for them to look carefully at the CCTV footage and determine whether that was correct. They were told on numerous occasions that questions of fact were entirely for them.

25. The fact that trial counsel neither asserted the contrary proposition in his own address, nor took objection to the judge’s statement, implies that he did not view the judge’s error as significant in the context of the trial. The relevance of such an inference was explained by this Court in R v Germakian:[8]

    8. (2007) 70 NSWLR 467; [2007] NSWCCA 373 (Giles JA, Hulme and Hislop JJ).

“[11]   In R v Tripodina (1988) 35 A Crim R 183 at 191, this Court held:

‘… it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously.’

[12]   A failure by counsel to perform this duty may be explicable because:

(a)   he overlooked the point or was unaware of the law on the subject;

(b)   he deliberately said nothing hoping to gain a tactical advantage at a later stage; or

(c)   he took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done: R v Tripodina (at 193, 191).

[13] Generally speaking, leave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: R v Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported), at 7, followed in R v DH [2000] NSWCCA 360 …. [U]nless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level.”

This case falls squarely within the terms of category (c).

26. This is not a case in which leave should be granted under r 4 to rely upon the sole ground of appeal.

Further observations

27. It is proper to add that there appears to have been evidence before the jury sufficient to justify the applicant’s conviction on count 4. Although it had been submitted at the trial that the prosecutor had not excluded the possibility that Mr Krha received his injury while rolling on ground where there was broken glass, that hypothesis is unlikely to have been given serious consideration by the jury. Mr Krha himself told two witnesses immediately after the event, namely Mr Strauf and Mr Strauf’s wife, that he had been “glassed” and that they “got me with the bottle”.

28. As to the possibility that he was hit by Mr Bennett, it is telling that the applicant was the person identified on the CCTV footage as walking in the direction of Mr Krha before the others had left the vicinity of the car. Further the applicant had a bottle in his hand and began tipping the contents on the ground immediately he got out of the car. The jury were entitled to infer that he intended to use the bottle as a weapon. Finally, Mr Krha appears to have identified his assailant as a large fellow of Pacific Islander appearance, a description which fitted the applicant, but not Mr Bennett.

29. Whilst it is possible that Mr Bennett could be seen putting a bottle in his pocket immediately after he got out of the rear passenger side seat, that was a matter for the jury to consider: it was not by any means clear. The same act appears to have occurred after the three men returned to the car, although again Mr Bennett is not clearly seen holding a bottle in his hand at any stage.

30. After an opportunity to reflect, counsel for the applicant confirmed his view that an unreasonable verdict ground was not available. [9] There is no reason to doubt that assessment.

    9. Tcpt CCA, 03/03/21, p 23(18).

Orders

31. I propose the following orders:

1. Refuse leave to appeal pursuant to Criminal Appeal Rules, r 4, with respect to the sole ground in the application for leave to appeal.

2. Dismiss the application for leave to appeal.

32. HARRISON J: I agree with Basten JA.

33. ADAMSON J: I agree with Basten JA.

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Endnotes

Decision last updated: 19 March 2021