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

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.
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.
As…

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'Sullivan v The Queen

Details

AGLC: O'Sullivan v The Queen [2021] NSWCCA 41
Case: [2021] NSWCCA 41
Decision Date: 19 March 2021

CaseChat Overview and Summary

The matter before the court was an appeal brought by the defendant, O'Sullivan, against his conviction for a violent offence involving the wounding of another person with intent to cause grievous bodily harm. The incident in question involved an attack with an empty bottle, and there was a second individual present at the scene who may have been responsible for the assault. The appeal hinged on two central issues: whether the trial judge had misstated the prosecution's case in a significant and material respect, and whether the prosecution had successfully excluded the possibility that the second individual was responsible for the attack.

The court examined the trial judge's summation of the prosecution's case and determined that there was indeed a misstatement. However, it was critical to assess whether this misstatement was significant and material to the outcome of the trial. The court also scrutinised whether the prosecution had adequately disproven the possibility that the second individual was responsible for the assault. In evaluating these issues, the court considered the evidence presented, the arguments from both the prosecution and the defence, and the legal principles applicable to the case.

In reaching its decision, the court concluded that the misstatement by the trial judge was not significant or material enough to warrant a miscarriage of justice. The court found that the prosecution had sufficiently excluded the possibility that the second individual was responsible for the attack, thereby establishing O'Sullivan's guilt beyond reasonable doubt. Consequently, the appeal was dismissed, and O'Sullivan's conviction was upheld. The court's reasoning emphasised the importance of accurately summarising the prosecution's case while also ensuring that the prosecution's burden of proof was met in excluding alternative suspects.

Orders