R v O'Grady - [2000] NSWSC 1256

CITATION: R v O'Grady [2000] NSWSC 1256

FILE NUMBER(S): SC 70013/00

HEARING DATE(S): 23/10/00 - 6/12/00

JUDGMENT DATE: 6 December 2000

PARTIES :

Regina
Matthew O'Grady

JUDGMENT OF: Hulme J at 1

COUNSEL : Crown: Mr M Tedeschi QC

SOLICITORS: Crown: SE O'Connor
Accused: Mr E Conditsis

DECISION: The ERISP video tape is made avilable to the press.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
NO: 70013/00
Wednesday 6 December 2000
HULME J

R v MATTHEW O’GRADY

JUDGMENT
On application by Crown Prosecutor to cross-examine accused on failure to refer to matters relied upon at trial in his ERISP; on objection to evidence from accused’s sister of conversation with accused after shooting; and on application by media for publication of ERISP video tape

1    HIS HONOUR: During the course of cross-examination of the accused, at about page 932 of the transcript, the Crown indicated the desire to cross-examine the accused on the topic of his failure to refer, during the course of his ERISP, to three matters now relied upon by him. The three matters are: The hearing of voices, experiencing flashbacks, and a lack of control at the time of the shooting.
2    The significance of the matters lies in the fact that an issue raised at the trial was the voluntariness of the accused’s conduct in his admitted shooting of the deceased. In the course of his ERISP, he said that it was like he was watching himself. In statement made since, particularly to psychiatrists and other medical witnesses, he has said that shortly prior to, or during, the activities which led to the shooting of the deceased, he heard voices telling him to “kill him” or “do it”, and it has been suggested that he was suffering from flashbacks, which as I understand it are mental images of previous experiences or hallucinations. It is said that, in part, because of these matters, and a state of depersonalisation which ensued, the accused had no control at the time he shot the deceased.
3    In my view, there were no questions asked of the accused during the ERISP which fairly inspired mention by him of flashbacks, but there were questions where one would have expected reference to having heard voices and having a lack of control, if indeed the accused either heard or thought he heard voices or he felt, during the course of the evening, that he had no control over what he was doing.
4    Included within the questions or answers wherein such a response could have been expected were numbers 64 to 5, 365, 368, 378 and 453. It might be noted that the Crown also relied upon questions 414 and 415. Thus it was that I held the Crown entitled to cross examine the accused on his failure to mention, during his police interview, the voices or lack of control.
5    Another matter which required a ruling from me occurred at about transcript page 714. During the examination in chief…

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'Grady

Details

AGLC: R v O'Grady [2000] NSWSC 1256
Case: [2000] NSWSC 1256
Decision Date: 6 December 2000

CaseChat Overview and Summary

In the case of Regina v Matthew O'Grady, the defendant was charged with the murder of an individual. The Supreme Court of New South Wales presided over the case, with Hulme J delivering the judgment. The Crown sought to cross-examine the defendant on his failure to refer to certain matters during his ERISP (Explanation of Relevant Investigative Statement or Police Interview) that he now relied upon. The matters in question were hearing voices, experiencing flashbacks, and a lack of control at the time of the shooting. The voluntariness of the defendant's conduct was an issue raised during the trial. The court also considered the admissibility of evidence from the defendant's sister about a conversation with the defendant after the shooting, and an application by the media for publication of the ERISP video tape.

The court ruled that the Crown was entitled to cross-examine the defendant about his failure to mention hearing voices and having a lack of control during his police interview, as there were questions that would have expected such a response. However, the court found that there were no questions asked of the defendant during the ERISP that would have led him to mention flashbacks. The court also allowed the sister's evidence, considering it admissible under the relevant sections of the Evidence Act. Finally, the court decided to make the ERISP video tape available to the press for limited purposes, such as displaying still photographs of the interview, while imposing a condition to prevent the reproduction of images of a friend present at the interview.

In conclusion, the Supreme Court of New South Wales allowed the Crown to cross-examine the defendant on certain matters related to his ERISP, admitted evidence from the defendant's sister, and made the ERISP video tape available to the press with certain conditions. This decision balances the need for open and transparent court processes with the protection of individuals involved in the case.

Orders