R v O'Sullivan - [1995] QCA 312

IN THE COURT OF APPEAL	[1995] QCA 312
SUPREME COURT OF QUEENSLAND

C.A. No. 165 of 1995

Brisbane

Before McPherson

J.A.

Pincus J.A. Demack J.

[R. v. O'Sullivan]

T H E Q U E E N

PAUL GEOFFREY O'SULLIVAN
(Appellant)
McPherson J.A.
Pincus J.A.
Demack J.

Judgment delivered 21/07/95

Reasons for judgment by the Court

APPEAL ALLOWED. CONVICTION SET ASIDE AND A NEW TRIAL ORDERED.

CATCHWORDS	CRIMINAL LAW - GRIEVOUS BODILY HARM - Whether trial judge failed to warn the jury of danger of acting on evidence of voice identification - Whether conduct of defence relieved trial judge of need to warn the jury of risks of voice identification - Domican v. The Queen (1992) 173 C.L.R. 555.
Counsel:	D. Richards for the appellant M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant

Queensland Director of Public Prosecutions for the respondent

Hearing Date:	23 June 1995
REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 21st day of July 1995

This is an appeal from conviction following a trial in the District Court at which the appellant was found guilty of one count of doing grievous bodily harm to Jacob Koster and a second count of entering his dwelling house at night with intent to commit an indictable offence. Both offences were alleged to have been committed on Friday 2 April 1993 when, at about 8 p.m., the appellant, as the prosecution set out to prove, came to Koster's house at Mt. Nebo in the company of three other men, Leighton, Childs and Liversay. Liversay had a sawn-off single barrelled shotgun. Childs also had a shotgun. Childs hit Koster around the head with his gun, and stuck the barrel into Koster's eyes. Liversay discharged his gun at Koster hitting him in the hand and causing injury which it was formally admitted involved grievous bodily harm. As a result, Koster lost a finger and part of his left hand.

Liversay has not been apprehended. By the time of this trial Leighton had already pleaded guilty and been sentenced for doing grievous bodily harm. Childs pleaded guilty at the beginning of the appellant's trial and was sentenced to imprisonment for two years. The appellant received sentences of three years and of two years, to be served concurrently, for the two offences of which he was convicted.

The events of Friday 2 April 1993 arose out of an agreement between Koster and Leighton in 1992 to cultivate a crop of marijuana in the rainforest somewhere near the house where Koster was living with Donna Williams at Mt. Nebo. At some time before those events, the marijuana plants were "ripped off", or removed from where they were growing, leaving only about 10 lbs or more of the plant, which was salvaged, harvested and dried. Their activities came to light as a result of the events of the night of 2 April 1993, and Leighton, Koster and the appellant were prosecuted for cultivating marijuana in proceedings in which Koster gave…

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 [1995] QCA 312
Case: [1995] QCA 312
Decision Date: 21/07/1995

CaseChat Overview and Summary

The case before the court involved a conviction of a defendant for grievous bodily harm. The issue at hand was whether the trial judge had erred by not warning the jury about the potential dangers of relying solely on voice identification evidence, a matter which was of significant importance given the absence of corroborating evidence. The case hinged on the principles set out in Domican v The Queen, where it was established that voice identification evidence carries inherent risks and that juries must be properly cautioned about these risks before acting on such evidence.

The court was tasked with determining whether the trial judge's failure to issue a proper warning constituted a miscarriage of justice. The defence argued that the conduct of their own counsel during the trial had effectively addressed the risks associated with voice identification evidence, thereby relieving the trial judge of the obligation to issue a specific warning. The prosecution contended that regardless of the defence's actions, the trial judge was still required to provide the necessary cautionary instruction to the jury.

In examining the matter, the court considered the established legal precedent that voice identification evidence is inherently unreliable and must be treated with caution. The court found that the conduct of the defence did not absolve the trial judge of their duty to warn the jury. The court concluded that the failure to issue the required warning was indeed a significant error that could potentially have influenced the jury's decision. Consequently, the court determined that the trial judge's oversight was a miscarriage of justice that necessitated the quashing of the conviction.

The court ordered the conviction to be quashed and remitted the matter back to the lower court for a re-trial, ensuring that the jury would be properly instructed on the dangers of relying on voice identification evidence. This decision underscores the importance of adhering to established legal principles in criminal trials, particularly when it comes to the handling of potentially unreliable evidence.

Orders