R v O'Hara

Case [2015] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Hara [2015] QCA 283

PARTIES:

R
v
O’HARA, Michael John
(applicant)

FILE NO/S:

CA No 63 of 2015
DC No 898 of 2011
DC No 602 of 2012
DC No 618 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:


District Court at Brisbane – Unreported, 20 April 2012

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2015

JUDGES:

Fraser and Gotterson and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application be refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SCOPE AND EFFECT OF APPEAL – where the applicant sought an extension of time within which to appeal against his conviction and sentence on the basis that he was affected by a neurological disorder – where the applicant was convicted on his own pleas of guilty of two counts of fraud and two summary offences – where the Court of Appeal had refused an earlier application by the applicant for an extension of time to appeal against conviction after a full consideration of the merits of the proposed appeal – where the suggested basis of the present application was the same as that which was previously refused, namely that the applicant was suffering from episodes of “focal dyscognitive seizures” at the time he pleaded guilty and was therefore unfit to plead – where the character of the application was an impermissible attempt to relitigate a case which the court had conclusively determined – where the application was refused

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant sought an extension of time within which to appeal against his conviction and sentence on the basis that he was affected by a neurological disorder described as focal dyscognitive seizures which made him unfit to plead at the time he was sentenced and caused his failure to appeal within time – where the applicant’s case was the same as that which the Court of Appeal had previously rejected in an earlier application for an extension of time to appeal against conviction upon the same basis – application refused

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWER TO BRING APPEAL – GENERALLY – where the Court of Appeal had refused an earlier application by the applicant for an extension of time to appeal against conviction after a full consideration of the merits of the proposed appeal – where it was ultimately unnecessary to determine the jurisdictional question as to whether the court had jurisdiction to hear a second application for an extension of time in which to appeal

Criminal Code (Qld), s 668D

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered
Lowe v R [2015] NSWCCA 46

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AGLC
R v O'Hara [2015] QCA 283
Case
[2015] QCA 283
Decision Date

CaseChat Overview and Summary

In the case of R v O'Hara, the applicant, who had previously been convicted on his own pleas of guilty to two counts of fraud and two summary offences, sought an extension of time to appeal against his conviction and sentence. This application was based on the applicant's claim that he was affected by a neurological disorder, specifically focal dyscognitive seizures, which impaired his ability to understand and participate in his trial at the time of his sentencing. The Queensland Court of Appeal had previously dismissed a similar application by the applicant, and this application was essentially an attempt to relitigate the same issue.

The primary legal issue before the court was whether the application for an extension of time to appeal should be granted, given that the applicant's grounds for appeal were the same as those previously rejected. The court also needed to determine whether it had jurisdiction to hear this second application for an extension of time. The court examined the evidence provided by the applicant, including medical reports and certificates, to assess whether there were reasonable prospects of success on appeal. The court found that the applicant had not presented sufficient new evidence to warrant a different outcome.

In its decision, the court concluded that the application should be refused. The reasoning was that the application was essentially a rehash of the arguments and evidence that had already been thoroughly considered and rejected by the Court of Appeal in 2014. The court found no new evidence that would change the previous conclusion that the applicant was not unfit to plead and did not adequately explain his failure to appeal within the prescribed time. The court also noted that it was unnecessary to determine the jurisdictional issue regarding the second application for an extension of time, as the application was bound to fail on its merits.

The final order of the court was to refuse the application for an extension of time to appeal against the conviction and sentence. This decision upheld the previous ruling of the Court of Appeal and reinforced the principle that parties cannot relitigate the same issues in successive applications without presenting new and compelling evidence.

Orders

Orders of the court

The application be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant therefore had no reasonable prospects of success in arguing that he was either unfit to plead or of unsound mind at the time of any of the offences.[28][28]Ibid 15 [50].The present evidence In the present application, further medical evidence was tendered by the applicant. There is a document addressed “to whom it may concern”, signed by Professor McConnell, in these terms:“This is to confirm that Michael O’Hara suffers from focal dyscognitive seizures. This results in episodes where he may continue to interact with others but is not cognisant of his actions. I believe that this is very likely relevant to his current legal proceedings as these episodes were untreated at the time of his legal hearing.”There is also another letter from Professor McConnell to Dr Sturman as follows:“I had the pleasure of seeing Michael O’Hara in Neuropsychiatry Second Opinion Outpatient Clinic. He states that he has done extremely well with the introduction of sodium valproate and has had no further episodes of loss of consciousness or any other seizure like events. These have reduced markedly in frequency and now occur only occasionally.”There are two further letters from Professor McConnell which are of no relevance and need not be discussed. There is a further medical certificate from Dr Sturman which repeats the opinion she expressed in the certificate which was considered by the court in the 2014 application. There is a report by Dr Helen Brown, a neurologist, dated 11 August 2015. She described a recent consultation in which the applicant had “one of his typical stereotyped events” which she then described. Her report does not express an opinion as to whether the applicant had this condition on the date of his sentence hearing. From Dr Brown’s description of the episode during the consultation, it seems inconceivable that the applicant could have been suffering such an episode at the sentence hearing without that being noticed by his lawyers and the sentencing judge. Moreover, Dr Brown recorded that the applicant said that his intent on the day of his sentence had been to plead not guilty, which is plainly inconsistent with what was said both by him and his counsel to the sentencing judge. There is a document described as “Consultation Liaison Psychiatry - Summary of Care” dated 2 September 2015 and completed by Dr Moss, a psychiatrist with Queensland Government Mental Health Services. This document provides no support for the applicant’s argument. More particularly it expresses no opinion as to whether the applicant was suffering seizures as he claimed and was doing so when he was sentenced. There is also a report from a Dr Walton, a psychiatrist, which was tendered at this hearing. This report is dated 30 May 2001. It makes no reference to the condition of which the applicant now complains. In an affidavit filed on 21 April 2015, the applicant exhibited a report by Dr Scott dated 21 January 2011. This was extensively discussed by Ann Lyons J.[29] (The same report is exhibited to a further affidavit of the applicant filed 7 September 2015.)[29]R v O’Hara [2014] QCA 257, 14-15 [48].

Decision

Reasons for decision

The respondent did not submit that the court lacks jurisdiction to hear the present application and it is preferable to leave this jurisdictional question for another case where the question is fully argued. If the court has jurisdiction, this application should fail because, as I am about to discuss, it is based on the same ground as was considered and rejected in the previous application.The 2014 judgment The thorough judgment of Ann Lyons J, with whom Muir and Gotterson JJA agreed, in the 2014 application makes it unnecessary for me to detail the case which the applicant then advanced and the court’s reasons for rejecting it, but some discussion of the argument and the evidence in that case is necessary. The applicant’s case was that he had recently been diagnosed with a neurological disorder described as focal dyscognitive seizures, which had affected him at the date of his sentence for many years previously, and for almost all of his subsequent incarceration. He argued that this condition had made him unfit to plead. The evidence which he adduced included letters from Professor McConnell addressed to his general practitioner, Dr Sturman, a medical certificate from Dr Sturman and a letter from a psychologist, Mr Huntley. The applicant had told Professor McConnell that he suffered episodes of “going blank” which occurred on a frequent basis of variable duration, from seconds to minutes and occasionally much longer periods of time. Professor McConnell originally wrote that it was “well possible that these ‘blank out episodes’ could represent focal dyscognitive seizures”. In the second of his letters to Dr Sturman, Professor McConnell expressed the more definite opinion that these episodes of “blankness” were “indeed likely focal dyscognitive seizures”. Dr Sturman’s medical certificate expressed her opinion that “this new diagnosis of long‑standing symptoms supports [the applicant’s] assertion that he was not functioning adequately cognitively at the time of his trial …”. Mr Huntley wrote that there appeared “to be sufficient evidence to suggest that [the applicant] may suffer from a neurological condition that has caused significant disruption to his life”, although that was apparently a description of Professor McConnell’s diagnosis rather than Mr Huntley’s own assessment. Ann Lyons J also considered evidence from psychiatrists as to the applicant’s condition both when he was sentenced and subsequently. Her Honour said that there was nothing in that material which supported a factual basis for a diagnosis of dyscognitive seizure attacks during his period in custody,[23] and concluded that the applicant had not adequately explained his failure to appeal within time.[24][23]R v O’Hara [2014] QCA 257, 9 [34].[24]Ibid 9 [35]. Her Honour also extensively referred to the transcript of the sentence hearing, which was significant in at least two ways. The first was that it revealed that the applicant had foreshadowed his intention to plead guilty “a long period of time” before the sentence hearing. Secondly, it recorded the applicant, as well as his counsel, addressing the sentencing judge and expressing deep remorse for his offending.[25] Ann Lyons J observed that the transcript did not indicate that the applicant had been experiencing a “blank out” or was in a state of cognitive disassociation on the day of sentence.[26][25]Ibid 11 [43].[26]Ibid 12 [44].

Ratio Decidendi

Legal Principle Established

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