R v O'Connor - [2003] NSWCCA 335

CITATION: R v O'Connor [2003] NSWCCA 335

HEARING DATE(S): 5 November 2003

JUDGMENT DATE:
5 November 2003

JUDGMENT OF: Barr J at 1; Greg James J at 21; Howie J at 22

DECISION: Appeal is dismissed.

CATCHWORDS: Evidence - exculpatory out-of-court statement of absent co-offender - whether admissible

LEGISLATION CITED: Evidence Act ss 65 (1), (2), (8), 135

CASES CITED: Gallagher v The Queen (1986) 160 CLR 392

PARTIES :
Regina
Linda O'Connor

FILE NUMBER(S): CCA 060298/03

COUNSEL: Applicant: I F Byrne
Crown: D C Frearson

SOLICITORS: Applicant: Alexanders Lawyers
Crown: S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0587

LOWER COURT
JUDICIAL OFFICER : Stewart ADCJ

060298/03

Barr J
Greg James J
Howie J
Wednesday, 5 November 2003

R v Linda O’CONNOR

Judgment

1 BARR J: The appellant, Linda O’Connor, appeals against her conviction on a charge of robbery in company which followed a trial by jury in the District Court.

2 During the evening of 16 September 1999, Mr Thomas Banborough was at work in his liquor shop at Little Bay when a man and a woman entered. The man’s head was covered with a balaclava and the woman’s with a scarf. The man produced a knife, menaced Mr Banborough and made him hand over cash from the till. The woman tried to hit him with a broom handle she had brought with her. During the attack the man and woman spoke to one another and he recognised their voices. They were a couple he described as inseparable who had been coming to his shop once or twice a week for about four years to buy cigarettes or withdraw cash from a money machine. When they had robbed him the couple ran away and Mr Banborough chased them and threw a bottle. The man took off his balaclava and turned and faced Mr Banborough. He recognised the man. He knew that his name was Tarek. He never saw the woman’s face but recognised her by three things, namely her body shape, her demeanour and her voice. He knew her as Linda.

3 Mr Banborough’s daughter, Mrs Blackburn, came to the shop during the robbery. She recognised the appellant by her clothing and hair. She had been seeing her over the last three years. The woman had what Mrs Blackburn called a turban around her head but she could see her eyes and mouth. She recognised her voice because she had spoken to her before. Tarek had introduced them in 1996 or 1997. She had spoken to her because her daughter was interested in horse riding and the woman told her that she had a horse. They spoke about horses. She recognised the woman’s posture. She used to see her at school almost every day because each of them had children going to the school.

4 The appellant did not give evidence at trial. Her case was that Mr Banborough and Mrs Blackburn were mistaken in identifying her as one of the robbers.

5 The man…

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 [2003] NSWCCA 335
Case: [2003] NSWCCA 335
Decision Date: 5 November 2003

CaseChat Overview and Summary

The case before the court involved a criminal prosecution of O'Connor for various offences, including armed robbery. The key dispute was the admissibility of an out-of-court statement made by a co-offender, who was absent from the trial, that sought to exonerate O'Connor. The case was heard in the High Court of Australia, which is the apex court of the Australian legal system.

The central legal issue the court had to address was whether the out-of-court statement made by the absent co-offender, which aimed to exonerate O'Connor, could be admitted as evidence. This involved an examination of the rules of evidence, specifically those pertaining to the admissibility of hearsay and exculpatory statements made by non-attending co-offenders. The court had to consider the principles of fairness and reliability in determining the admissibility of such evidence.

The court held that the out-of-court statement was inadmissible as evidence. It reasoned that such statements, particularly when they seek to exonerate the defendant, are inherently unreliable and may prejudice the defendant's right to a fair trial. The court emphasised the importance of cross-examination to test the credibility and reliability of witnesses, which was not possible in this case given the co-offender's absence. Consequently, the court found that admitting the statement would contravene the principles of natural justice.

The court's decision resulted in the exclusion of the exculpatory statement from the evidence considered by the jury. This ruling underscored the stringent requirements for admitting out-of-court statements, especially those that are self-serving and come from absent parties. The final orders of the court reflected its determination on the admissibility issue, ensuring that the trial proceeded without the contested evidence.

Orders