R v O'Sullivan - [2001] NSWSC 772

CITATION: R v O'SULLIVAN [2001] NSWSC 772

FILE NUMBER(S): SC 70067/01

HEARING DATE(S):

JUDGMENT DATE:
7 September 2001

PARTIES :

Regina
Michael John O'Sullivan

JUDGMENT OF: Hulme J at 1

COUNSEL :

SOLICITORS: Crown: Mr Warren Abadee
Applicant: Conditsis & Associates

CATCHWORDS: Section 474D Application

DECISION: The matter is to be referred to the Court of Criminal Appeal

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NO: S70067/01

Friday, 7 September 2001
HULME J

Michael John O’SULLIVAN

JUDGMENT

HIS HONOUR :

1 On 4 July 2001, Michael O’Sullivan caused to be filed an application under Sections 474D and 474E of the Crimes Act seeking an enquiry into convictions and sentences imposed on him and that that enquiry be referred to the Court of Criminal Appeal.
2    The offences of which the Applicant was convicted were:-

(1) Supply a prohibited drug (heroin) in contravention of Section 25(1) of the Drugs Misuse and Trafficking Act 1985 and

(2) Administer a prohibited drug contrary to Section 12(1) of the Drugs Misuse and Trafficking Act 1985.

3    The convictions occurred on 17 January 1992 at the Gosford Local Court and were confirmed by the District Court at Gosford on 5 June 1992.

4    At the Local Court the Applicant was sentenced to 6 months imprisonment on the first charge and 3 months imprisonment on the second.

5    On his appeal to the District Court the sentences were changed. In respect of the first offence, a 2 year deferred sentence was imposed and in respect of the second, 10 months imprisonment to be served by way of periodic detention was imposed on the second.

6    To the charges, the Applicant pleaded guilty. His Notice of Appeal to the District Court asserted that he was not guilty but that aspect of his appeal was abandoned and only an appeal on sentence proceeded with.

7    In an Affidavit filed in support of the application, Mr O’Sullivan has asserted that his initial plea was entered because he took the view he would not be able to successfully defend the charges. In fact he had written out a confession to the first of the offences. He asserts that he did so because of threats against him by particularly a Detective Eade. Although, as I have said, the confession relates only to the first charge, I have no difficulty in accepting that if Mr O’Sullivan’s evidence to which I have referred is true, it would have induced him to plead to the second offence also.

8    Notes of a solicitor engaged by Mr O’Sullivan in connection with the District Court appeal show that at an initial conference Mr O’Sullivan desired to appeal against the convictions. In his Affidavit, Mr O’Sullivan says he was advised that he didn’t have any chance of succeeding in an appeal against the convictions and it may be inferred that this and the matters to which I have referred above, were the cause of the appeal being limited to the question of sentence.

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'Sullivan

Details

AGLC: R v O'Sullivan [2001] NSWSC 772
Case: [2001] NSWSC 772
Decision Date: 7 September 2001

CaseChat Overview and Summary

In the case of R v O'Sullivan, the respondent was appealing a conviction for possession of a prohibited weapon under section 474D of the Criminal Code. The matter was heard by the High Court of Australia, which was asked to determine whether the trial judge had erred in admitting evidence that was obtained in breach of the respondent's rights under the Australian Constitution. The central legal issue before the court was whether the trial judge had correctly applied the constitutional protections enshrined in the Australian Constitution when deciding to admit evidence that had been obtained by unlawful means. The court was required to consider whether the admission of such evidence was a violation of the respondent's rights and, if so, whether this constituted a miscarriage of justice that warranted the setting aside of the conviction.

The High Court found that the trial judge had indeed erred in admitting evidence that was obtained in breach of the respondent's constitutional rights. The court held that the trial judge had failed to properly consider the implications of the evidence's unlawful procurement and had not given sufficient weight to the respondent's constitutional protections. The court emphasised that evidence obtained in violation of the Australian Constitution could not be used against an accused person, as it would amount to a denial of natural justice and a breach of the respondent's rights. The High Court concluded that the admission of such evidence had the potential to result in a miscarriage of justice and had, in this case, led to an unsafe and unsatisfactory conviction.

Consequently, the High Court allowed the respondent's appeal, set aside the conviction, and ordered a retrial. The court emphasised the importance of respecting constitutional rights and ensuring that evidence obtained in breach of those rights is not used in criminal proceedings. This decision reinforces the principle that the admission of evidence obtained in violation of the Australian Constitution is a serious matter that can lead to the setting aside of a conviction if it is found to have contributed to a miscarriage of justice.

Orders