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Olivieri v R

Olivieri v R

Case [2016] NSWCCA 169 22 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Olivieri v R [2016] NSWCCA 169
Hearing dates: 14 March 2016
Decision date: 22 August 2016
Before: Leeming JA at [1];
Johnson J at [184];
Harrison J at [185]
Decision:
1. Extend the time within which to commence this appeal to 30 September 2014.

2. To the extent necessary, grant leave to appeal.
3. Appeal dismissed.
Catchwords: CRIMINAL LAW – murder – appeal against conviction – circumstantial Crown case – whether controlled operation unlawful – whether fresh evidence of absence of DNA should be received – whether trial counsel incompetent – whether verdict unsafe and unsatisfactory – no ground established – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 176A
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW), ss 128, 138
Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 6, 7, 8, 16, 27
Cases Cited: Alkhair v R [2016] NSWCCA 4
Gedeon v NSW Crime Commission [2008] HCA 43; 236 CLR 120
Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Morgan v R [2011] NSWCCA 257; 215 A Crim R 33
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
R v Olivieri; R v Norman [2006] NSWSC 882
Shepherd v The Queen (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; 243 CLR 400
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Category: Principal judgment
Parties: Tony Olivieri (Applicant)
Crown (Respondent)
Representation:
Counsel:
Applicant in person
PG Ingram SC (Crown)
Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s): 2005/3441
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Date of Decision:

28 August 2006

Before:

Hidden J

File Number(s):

2005/2314

Judgment

LEEMING JA: Mr Tony Olivieri and a co-defendant, Mr Mark Edward Norman, were tried together before the trial judge and a jury of 12 between 26 July and 28 August 2006. The indictment charged a single count against Mr Olivieri, namely that “[o]n 6th April 2004 at Petersham in the State of New South Wales [Mr Olivieri] did murder Thomas Williams”.
The indictment also charged two counts against Mr Norman, namely that Mr Norman was an accessory before the fact to that murder, and that Mr Norman, being a director of M&R Norman Pty Ltd, cheated and defrauded the deceased in his dealings with M&R Norman Pty Ltd, contrary to s 176A of the Crimes Act 1900 (NSW) (now repealed). Both men pleaded not guilty. On 28 August 2006, the jury found both Mr Olivieri and Mr Norman guilty of the counts charged against them in the indictment.
Both men were sentenced on 5 March 2007: R v Olivieri; R v Norman [2006] NSWSC 882. Mr Olivieri was sentenced to imprisonment for a term…

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 Olivieri v R

Details

AGLC: Olivieri v The Queen [2016] NSWCCA 169
Case: [2016] NSWCCA 169
Decision Date: 22 August 2016

CaseChat Overview and Summary

The appeal was brought by the defendant, Olivieri, against his conviction for murder. The case before the court was the appeal against the conviction and sentence of Olivieri, who had been found guilty of murder. The appeal centred on several critical issues, including the legality of a controlled operation conducted by law enforcement, the admissibility of new DNA evidence suggesting Olivieri's absence at the crime scene, the competency of trial counsel, and the overall safety and satisfaction of the verdict. The court was tasked with determining whether these factors warranted a reconsideration of the conviction.

In addressing the legality of the controlled operation, the court found that there was no evidence to suggest that the operation was unlawful. Regarding the new DNA evidence, the court considered it but determined that it did not significantly impact the reliability of the existing evidence against Olivieri. The competency of the trial counsel was also scrutinized, but the court found no grounds to suggest that the counsel's performance was deficient. Finally, the court reviewed the entirety of the evidence and concluded that the verdict was both safe and satisfactory.

Given the findings, the court dismissed the appeal. The reasoning provided by the court was that none of the issues raised were sufficient to establish a ground for overturning the conviction. Consequently, the conviction and sentence were upheld. The final orders of the court were to dismiss the appeal, confirming the original conviction and sentence.

Orders