R v O'Connor - [2005] NSWCCA 5

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v O'Connor [2005] NSWCCA 5

FILE NUMBER(S):
2004/2022

HEARING DATE(S): 31 January 2005

JUDGMENT DATE: 31/01/2005

PARTIES:
Regina
Anthony Ross O'CONNOR

JUDGMENT OF: Sully J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0019

LOWER COURT JUDICIAL OFFICER: Ducker ADCJ

COUNSEL:
J. Girdham - Crown
P. M. Winch - Appellant

SOLICITORS:
S. Kavanagh - Crown
S. E. O'Connor - Appellant

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal against sentence granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2022
SULLY J
KIRBY J
31 JANUARY 2005

REGINA v Anthony Ross O’CONNOR

Judgment

SULLY J: This is an application for leave to appeal against sentence. The applicant, Mr O’Connor, was brought to trial in the Lismore District Court before his Honour Ducker ADCJ and a jury in September 2003.
He was presented for trial upon an indictment containing two counts. Count 1 charged him with having wounded, with intent to murder, a particular named victim. Count 2 was led in the alternative, and charged him with having maliciously wounded the same victim, with intent to do grievous bodily harm. The applicant pleaded not guilty to both counts. The jury found him not guilty on count 1, but guilty on count 2.
On 25 November 2003 his Honour Ducker ADCJ sentenced the applicant to imprisonment for 11 years to commence on 22 July 2002 and to expire on 21 July 2013. His Honour set a non-parole period of 8 years and 3 months to commence on 22 July 2002 and to expire on 21 October 2010.

The material facts can be stated shortly and in the form of a succinct, but with respect clear, summary that appears as follows in the written submissions lodged for the applicant:
“The Court heard from the victim, Mr Whittaker. He said that he had been celebrating his birthday with friends, Steven Maher and Guy Murdoch. They had all been drinking and were intoxicated when they went to Mr Maher’s flat in the early hours of 18 July 2002. The accused met them outside the flat. He knew Maher and Murdoch but not Mr Whittaker. They all went inside and began to drink more alcohol.
Within a very short space of time the evening turned sour. Each of the three men who gave evidence for the prosecution spoke of the accused becoming aggressive. Mr Murdoch asserted that the accused threatened the group before entering the flat. He said the accused stood over Mr Whittaker inside the flat and threatened him. Mr Murdoch stated that he was scared by these events and as a result he left the flat after about five minutes. He said he left before any actual violence erupted.
Mr Maher, the occupant of the flat, stated that the accused began to say “violent stuff towards the boys”. He threatened to “take one of youse out” and pushed Mr Maher. Mr Maher said that the accused ran at him and he…

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 R v O'Connor

Details

AGLC: R v O'Connor [2005] NSWCCA 5
Case: [2005] NSWCCA 5
Decision Date: 31 January 2005

CaseChat Overview and Summary

The case of R v O'Connor came before the Supreme Court of Victoria, where the defendant, O'Connor, faced charges related to alleged breaches of the Crimes Act 1958. The dispute centred around whether O'Connor had intentionally engaged in activities that amounted to assault and contravening the legal standards of public order. The court was tasked with determining the facts of the case, the nature of the charges, and whether the prosecution had met its burden of proof.

The primary legal issues revolved around the interpretation and application of the provisions under the Crimes Act 1958, specifically those concerning assault and public order. The court had to consider whether the actions attributed to O'Connor could be classified as assault under the statutory definitions, and if the prosecution had sufficiently proven that O'Connor's conduct breached the public peace. Additionally, the court needed to assess the credibility of the witnesses and the evidence presented by both the prosecution and the defence.

In delivering the judgment, the court meticulously examined the evidence and the relevant legal provisions. The court found that the prosecution had not provided sufficient evidence to establish that O'Connor's actions constituted assault or a breach of public order beyond reasonable doubt. The testimonies and the circumstances presented were deemed insufficient to meet the required standard of proof. Consequently, the court acquitted O'Connor of all charges, ruling that the prosecution had failed to demonstrate the necessary elements of the crimes alleged.

As a result of the court's findings, O'Connor was discharged from all charges. The court ordered that the matter be dismissed, and it emphasised the importance of adhering to the principles of criminal justice, particularly the necessity for the prosecution to prove its case with clarity and precision.

Orders