Regina v Kenneth Ian O'Meara

[2003] NSWCCA 250

CITATION:	Regina v Kenneth Ian O'Meara [2003] NSWCCA 250
HEARING DATE(S):	5 September 2003
JUDGMENT DATE:	5 September 2003
JUDGMENT OF:	Meagher JA at 1; Sully J at 2; Smart AJ at 9
DECISION:	Appeal dismissed
LEGISLATION CITED:	Crimes Act 1914 (Commonwealth) Judiciary Act (Commonwealth)
CASES CITED:	Regina v Ross, unreported, NSWCCA 20 April 1994 Regina v Hayes (1951) 1 KB 29
PARTIES :	Regina Kenneth Ian O'Meara
FILE NUMBER(S):	CCA 60167/03
COUNSEL:	M. King - Crown H. Dhanji - Appellant
SOLICITORS:	Commonwealth DPP Murphy's Lawyers - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0591
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

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60167/03

MEAGHER JA
SULLY J
SMART AJ

5 September 2003

REGINA v KENNETH IAN O’MEARA

Judgment

1 MEAGHER JA: The Court is in a position to give judgment. I will ask Mr. Justice Sully to give the first judgment.

2 SULLY J: The appellant, Mr O’Meara, was presented in the District Court for trial upon an indictment charging him with four contraventions of s 29B of the Crimes Act 1914 (Commonwealth). He was represented by counsel. He entered pleas of not guilty to each count in the indictment. He was put, accordingly, upon his trial by jury.

3 After that trial had been proceeding for some time, he intimated through his counsel that he wished to change his pleas. The jury being absent, the learned trial Judge thereupon re-indicted the appellant and took from him pleas of guilty to the four counts in the freshly presented indictment. That having been done, the learned primary Judge formally recorded convictions; brought the jury back into Court; explained to the jury what had happened; and formally discharged the jury. His Honour subsequently imposed penalties upon Mr O’Meara; but they are not the subject of an application for leave to appeal against them, and nothing more need be said about them for present purposes.

4 It is contended that the convictions should now be quashed upon the basis that they are tainted by error of law deriving from what is said to be the requirement of s 80 of the Commonwealth Constitution which is in the following terms:

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury and every such trial shall be held in the State where the offence was committed and if the offence was not committed within any State the trial should be held at such place or places as the Parliament prescribes.”

5 It is a short point; and I presume to say that, in my opinion, it ought to be disposed of, and can be disposed of, fairly without the Court’s becoming entangled in complicated constitutional questions.

6 The essential propositions seem to me to be as follows:

1. The District Court has jurisdiction to try upon indictment a person who is charged with a contravention of a Commonwealth law when that jurisdiction derives from s 68(2) of the Judiciary Act (Commonwealth).

2. The procedure and practice which are normally to be followed in the case of such a trial are to be the procedure and practice otherwise obtaining in the Court of trial. That is established by section 68(1) of the
Judiciary Act . It is true that the provision thus made by s 68(1) is expressed to be made “subject to this section”; but that is a gloss which has no practical import for present purposes.

3. In the events which happened, it seems to me that there came a time at which there were current in the District Court two concurrent proceedings. One was a part-heard trial upon indictment. The other was a proceeding commenced by the re-indictment, and the taking of pleas upon the re-indictment.

4. That being so, I wholly fail to see how Mr O’Meara, the appellant, was deprived of anything to which he was lawfully entitled in terms of s 80 of the Commonwealth Constitution. For as long as he was wishing to persist in pleas of not guilty, he was completely entitled to a trial by jury; and nothing that was done in the District Court seems to me to have anything about it to the contrary. In the events that happened, I do not see that there is any infraction of s 80 of the Constitution at all.

5. Even were I of the contrary view, it would seem to me that this was a case, if there ever was one, in which the Court should adopt the problem-solving approach expounded by Mahoney JA in his Honour’sjudgment in Regina v. Ross ; unreported, NSWCCA, 20 April 1994. In his judgment his Honour speaks of what he describes as a “balance to be struck between the protection against the possibility of abuse and (if it be such) the enforcement of mere technicalities”. His Honour expresses in forceful terms, with which I agree in their entirety, the propositions in so far as that technicality is to be avoided precisely because of the damage that they do to the credit of the law in the community at large. His Honour’s judgment goes on to concede that what I respectfully adopted as an appropriate focus of any potential for a miscarriage of justice it suffices to say that in the facts of this case I am wholly unable to see that there was any miscarriage of justice of this kind whatsoever.

7 In the whole of these circumstances, I think the point is without substance. I dismiss the appeal.

8 MEAGHER JA: I agree.

9 SMART AJ: I also agree that the appeal should be dismissed. I agree with what Justice Sully has said but I wish to make one additional comment.

10 For many years, the practice in this State where a person even on a Commonwealth offence was indicted and then during the course of the trial wished to change his plea was either for the Judge to direct the jury to enter a particular verdict in accordance with the decision in Regina v. Hayes (1951) 1 KB 29 or to discharge the jury and re-indict the accused and take his plea. The latter course seems to have been taken in this case and to my mind that involves no infraction of the constitutional provision and no miscarriage of justice has occurred.

11 MEAGHER JA: Well, in that case, the order of the court is the appeal is dismissed.

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Last Modified: 09/10/2003