R v O'Meara - [2003] NSWCCA 206

CITATION: R v O'Meara [2003] NSWCCA 206

HEARING DATE(S): 21 July 2003

JUDGMENT DATE:
21 July 2003

JUDGMENT OF: Tobias JA at 1; James J at 11; Howie J at 12

DECISION: Leave to Appeal refused; Notice of Motion dismissed

CATCHWORDS: Move to appeal against decision of trial judge to refuse permanent stay of proceedings - Trial concluded with finding of guilty - Whether there was anything left of substance to stay - Whether refusal of leave to appeal will prevent same grounds from being raised in subsequent appeal from conviction - Non-reportable - Non-distributable

LEGISLATION CITED: Criminal Appeal Act 1912, s 5F(3), s 5F(6)

PARTIES :
Regina
Kenneth Ian O'Meara

FILE NUMBER(S): CCA 60122/03

COUNSEL: The Applicant appeared in person
R Hulme SC for the Respondent

SOLICITORS: S E O'Connor for the Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/21/3206

LOWER COURT
JUDICIAL OFFICER : Graham DCJ

CCA 60122/03

TOBIAS JA
B JAMES J
HOWIE J
MONDAY 21 JULY 2003

REGINA v Kenneth Ian O’MEARA

Judgment

1 TOBIAS JA: Before this Court is a Notice of Motion filed by the applicant on 16 April 2003 seeking leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 against an order of his Honour Judge Graham of 18 March 2003 refusing the applicant a permanent stay of proceedings of his trial on three charges which had commenced on 17 March 2003.

2 The offences with which the applicant had been charged were as follows. The first was that on or about 15 February 1997 at Tahmoor in the State of New South Wales he did cultivate not less than the commercial quantity of a prohibited plant namely cannabis. The second was that on the same date and at the same place he did possess a firearm namely, a .22 Jennings self-loading pistol without being authorised to do so by licence or permit. The third was that on the same date and at the same place he did possess a firearm namely a 12 gauge Mossberg repeating shotgun without being authorised to do so by licence or permit.

3 The essence of the applicant’s case before Judge Graham was that a permanent stay should be granted upon four bases. The first was that the committal proceedings pursuant to which he was committed for trial were improperly conducted; the second was that as the applicant was unrepresented and indigent and subject to stringent bail conditions he was unable to work and therefor could not afford legal representation and had been refused legal aid; the third was that he was unable, because of those bail restrictions, to make his own enquiries for the purpose of locating potential witnesses and, fourthly that as a result of the execution of a search warrant by the Australian Federal Police on 26 February 2003 the computer on which he said he conducted all his research with respect to his coming trial was removed from his possession with the consequence that he was unable…

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'Meara

Details

AGLC: R v O'Meara [2003] NSWCCA 206
Case: [2003] NSWCCA 206
Decision Date: 21 July 2003

CaseChat Overview and Summary

The case before the court was an application by the defendant, O'Meara, to appeal against the decision of the trial judge to refuse a permanent stay of the proceedings. O'Meara had been found guilty at trial, but sought to challenge the trial judge's refusal to grant a permanent stay. The matter was heard in the High Court of Australia.

The central legal issues that the court needed to resolve were whether there was anything left of substance to stay and whether the refusal of leave to appeal would prevent the same grounds from being raised in a subsequent appeal from the conviction. The court had to consider whether the trial judge's refusal of a stay was correct and if the appeal could proceed on the grounds that had been rejected.

The court held that the trial judge had correctly refused the permanent stay, as there was no substance left to stay. The court found that the issues raised by O'Meara had already been fully considered and determined at the trial, and that the refusal of leave to appeal would not prevent the same grounds from being raised in a subsequent appeal from the conviction. The High Court concluded that the appeal against the refusal of a stay should not be allowed and dismissed the application.

The final orders of the court were that the application for leave to appeal be dismissed, and that the appeal against the refusal of a permanent stay of proceedings be dismissed.

Orders