Regina v Django O'Hara - [2005] NSWCCA 97

CITATION:
Regina v Django O'Hara [2005] NSWCCA 97

HEARING DATE(S): 18 March 2005

JUDGMENT DATE:

18 March 2005

JUDGMENT OF:
Barr J at 1, 27; Bell J at 25; Hall J at 26

DECISION:
Application for an extension of time within which to bring an application for leave to appeal refused.

PARTIES:
Regina, Django O'Hara

FILE NUMBER(S):
CCA 60201/02

COUNSEL:
M Thangaraj
D Woodburne

SOLICITORS:
Michael Croke & Co
SE O'Connor

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70067/95

LOWER COURT JUDICIAL OFFICER:
Sully J

2002/2441

BARR J
BELL J
HALL J
18 MARCH 2005

REGINA v DJANGO O’HARA

Judgment

1 BARR J: On 5 March 1995 the applicant, Django O’Hara, shot and killed a security guard during an attempted robbery at a house at Roseville. He pleaded guilty of murder and was sentenced on 11 December 1996 to penal servitude for twelve years and ten months, comprising a minimum term of eight years and ten months and an additional term of four years. Since he had already spent about one year and two months in custody exclusively for the offence for which he was sentenced, the applicant’s sentence effectively comprised a minimum term of ten years and an additional term of four years. The sentencing judge, Sully J, fixed the minimum term to expire on 30 March 2006 and the applicant thereby acquired an eligibility for release to parole on that day.

2 As the Criminal Appeal Rules then stood, the applicant had twenty-eight days from the date of imposition of sentence within which to seek leave to appeal against the sentence. On 12 April 2002 he filed a notice applying for leave to appeal against the sentence and a notice applying for an extension of time within which to seek that leave. The grounds of the application for leave to appeal were apparently written by the applicant himself and are not easily understood, but they included an assertion that the sentence was severe. The accompanying notice of application for an extension of time was in the form prescribed by the Rules, which provided for reasons to be given why the notice seeking leave to appeal had not been given within twenty-eight days of the sentence. No reasons were given.

3 There are sound economic reasons why this Court routinely considers simultaneously applications for leave to appeal against sentences and, if the Court grants leave, the appeals themselves. That approach also commonly extends to the simultaneous consideration of applications for extensions of time within which to seek leave to appeal against sentences or to appeal against convictions. Parties often reasonably assume, where delay is not gross and proper reasons are offered to explain it, that the need for an extension of time will probably not be a matter of much consequence in the determination of the appeal.

4 It is otherwise, however, where there has been gross delay. The parties to such cases ought not readily to assume that the Court will regard as formal or of…

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 Regina v Django O'Hara

Details

AGLC: Regina v Django O'Hara [2005] NSWCCA 97
Case: [2005] NSWCCA 97
Decision Date: 18 March 2005

CaseChat Overview and Summary

In Regina v Django O'Hara, Django O'Hara, the applicant, was convicted of murder for shooting and killing a security guard during an attempted robbery in Roseville in 1995. He was sentenced to penal servitude for twelve years and ten months, with a minimum term of eight years and ten months. The applicant filed a notice of appeal against the sentence more than five years after the time limit set by the rules, without providing reasons for the delay. The Court of Criminal Appeal was asked to consider whether to grant an extension of time within which to seek leave to appeal against the sentence. The applicant argued that the harsh conditions of his custody and the risk of such conditions were foreseeable at the time of sentencing. The Crown argued that the conditions were due to the applicant's conduct during the service of his sentence. The Court of Criminal Appeal held that the applicant had not provided sufficient reasons for the delay and that it would be unreasonable and unjust to grant an extension of time. The Court also held that the applicant's complaints about the conditions of his custody were not amenable to the Court's jurisdiction and that there was no miscarriage of justice.

The Court of Criminal Appeal refused the application for an extension of time within which to bring an application for leave to appeal against the sentence.

Orders