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Court of Criminal Appeal 12 April 2002

Regina v O'Meara

[2002] NSWCCA 134

Public order & justice offences

Citation: Regina v O'Meara [2002] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 12 April 2002
Judge(s): Bell J (with Ipp AJA and Sully J agreeing)

Background

The appellant, a self-represented accused, had been charged with four offences under the Commonwealth Crimes Act 1914 following his arrest in September 1999. After lengthy Local Court proceedings spanning fourteen appearances, he was committed for trial and the matter was listed in the Sydney District Court for arraignment in mid-2001.

Before arraignment, the appellant filed a notice of motion in the District Court raising ten separate grounds challenging the validity and propriety of the prosecution. Nield DCJ dismissed that motion, describing it as "frivolous" and bordering on vexatious, finding it had been brought to delay the prosecution. The appellant then sought leave to appeal against that dismissal to the Court of Criminal Appeal.

The appellant did not appear at the hearing of his application, having contacted the Registry the day before to indicate he was unwell. The Court proceeded to deal with the application on the basis of his written submissions.

  • Whether the NSW District Court could be validly seized of jurisdiction by an indictment presented by the Commonwealth Director of Public Prosecutions
  • Whether the attempt to prosecute in the District Court offended section 69 of the Judiciary Act 1903 and/or section 109 of the Constitution
  • Whether the indictment should be permanently stayed on the basis that charges were brought for an improper or collateral purpose
  • Whether the indictment was invalid due to discrepancies between the committed charges and the charges on the proposed indictment
  • Whether various provisions of the Judiciary Act 1903 and the Commonwealth Crimes Act 1914 were constitutionally valid
  • Whether leave to appeal under section 5F(3) of the Criminal Appeal Act 1912 should be granted

Decision

Bell J, with whom Ipp AJA and Sully J agreed, identified that several of the grounds advanced by the appellant raised constitutional questions involving the interpretation of the Commonwealth Constitution. However, the Court noted that the appellant did not appear to have served notices on the Attorneys-General of the Commonwealth and the States as required by section 78B of the Judiciary Act 1903 where constitutional issues are raised. To the extent those grounds had been dealt with by Nield DCJ, the Court was not persuaded that his Honour had proceeded on any wrong principle.

On the permanent stay ground, Nield DCJ had found there was no evidence to support the contention that the indictment had been brought for a collateral purpose. The Court of Criminal Appeal noted that nothing in the appellant's written submissions challenged that finding. One ground was not pressed, and another was dependent on the success of the constitutional grounds, which had not been established.

The Court noted that some of the matters in the appellant's affidavit had already been the subject of earlier Court of Criminal Appeal decisions in the same proceedings. Having considered all grounds, the Court concluded this was not an appropriate case in which to grant leave to appeal.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that, under section 5F of the Criminal Appeal Act 1912, a clear procedural distinction applies between appeals as of right and appeals requiring leave, consistent with the principles stated in Regina v Matovski (1989) 15 NSWLR 720.
  • Where constitutional questions are raised in proceedings, section 78B of the Judiciary Act 1903 requires that notices be served on the Attorneys-General of the Commonwealth and the States before those questions are adjudicated.
  • Raising numerous constitutional and procedural challenges to a prosecution in a single motion does not, without substantive legal foundation for each, provide grounds for leave to appeal when the primary judge has dismissed those challenges.
  • No error of principle was identified in Nield DCJ's dismissal of the motion, including his finding that there was no evidence the prosecution had been brought for a collateral purpose.
  • In refusing leave, the Court proceeded on the written submissions alone after the appellant failed to appear, consistent with the history of the proceedings and the need to avoid further delay.

Legislation and Cases Referenced

Legislation:
- Commonwealth of Australia Constitution, ss 61, 109
- Crimes Act 1914 (Cth), ss 29B, 29D
- Criminal Appeal Act 1912 (NSW), s 5F
- Judiciary Act 1903 (Cth), ss 69, 78B

Cases:
- Regina v Matovski (1989) 15 NSWLR 720
- Regina v O'Meara [2001] NSWCCA 195
- Regina v O'Meara [2001] NSWCCA 201