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Court of Criminal Appeal 28 April 2006

O'Meara v R

[2006] NSWCCA 131

DrugsFirearms & weapons
APPEAL AGAINST CONVICTION APPLICATION FOR STAY OF PROCEEDINGS APPELLANT UNREPRESENTED AND INDIGENT APPLICATION REFUSED APPELLANT REFUSED LEAVE TO APPEAL GROUNDS OF APPEAL

Citation: O'Meara v R [2006] NSWCCA 131
Court: New South Wales Court of Criminal Appeal
Date: 28 April 2006
Judges: Simpson J, Buddin J, Hall J

Background

The appellant was convicted in the District Court in June 2003 on three counts: cultivating not less than a commercial quantity of cannabis (contrary to the Drug Misuse and Trafficking Act 1985), and two counts of unauthorised possession of a firearm (a semi-automatic pistol and a repeating shotgun) under the Firearms Act 1989. All offences were alleged to have occurred on or about 15 February 1997 at Tahmoor. The trial ran for nearly nine weeks before a jury returned guilty verdicts on all counts.

The appellant appeared without legal representation at both trial and on appeal. The Court noted that he had invested considerable effort in preparing his submissions and demonstrated genuine intellectual capacity, but had misapprehended a number of legal principles along the way.

On sentencing, Graham DCJ imposed sentences that involved a degree of accumulation. The appellant subsequently challenged both his convictions and sentences on an extensive range of grounds.

The court was asked to resolve questions on a broad range of grounds, including:

  • Whether the trial court should have granted a stay of proceedings on account of the appellant being unrepresented, indigent, subject to restrictive bail conditions, and having lost material relevant to his defence
  • Whether the trial court should have conducted an inquiry into the appellant's fitness to be tried
  • Whether items seized under search warrants were illegally or improperly obtained (including challenges to the validity of the warrants and alleged trespass)
  • Whether a pre-trial voir dire (a hearing on admissibility of evidence, held without the jury) was procedurally flawed
  • Whether various pieces of evidence, including the identity certificate for cannabis plants and evidence about a stolen shotgun, were admitted in error
  • Whether juror ineligibility, alleged improper relationships between jurors and the prosecution team, and the visibility of bench warrant executions by jurors caused a miscarriage of justice
  • Whether double jeopardy principles were engaged by a prior certificate of dismissal on a goods-in-custody count
  • Whether the amendment to the indictment was permissible
  • Whether a firearms amnesty under earlier legislation continued to operate, given that the relevant Firearms Act had been repealed before trial
  • Whether the trial judge was biased, with particular reference to post-conviction remarks
  • Whether the summing-up contained adequate directions on the accused's silence, the failure to call witnesses, and the firearms amnesty
  • Whether the verdicts were unsafe and unsatisfactory
  • Whether the indictment was valid and whether the charges were ones that could only be prosecuted summarily
  • On sentence: whether irrelevant matters were taken into account, whether prior convictions under appeal were wrongly considered, and whether accumulation of sentences was explained and justified

Decision

The Court dismissed the appeal against conviction in its entirety. Several grounds were abandoned by the appellant during the proceedings. On those that were pressed, the Court found no miscarriage of justice, no improper admission of evidence, and no procedural irregularity that affected the outcome of the trial. Where evidence had been placed before the jury in error, the Court characterised the irregularity as having no consequences.

On the firearms amnesty argument, the Court accepted that although the relevant Firearms Act 1989 had been repealed and replaced by the time of trial, the pre-repeal operation of that legislation was preserved by section 30 of the Interpretation Act 1987. The charges were therefore lawfully brought and maintained under the earlier Act.

On the question of bias, the Court found that post-conviction remarks by the trial judge did not establish actual bias or give rise to a reasonable apprehension of bias. The directions given in the summing-up, including those on the appellant's silence and the failure to call witnesses, were also found to be adequate.

On sentence, the Court found no error in the sentencing exercise. Graham DCJ had correctly directed himself in accordance with the principles in Pearce v The Queen when fixing sentences with a degree of accumulation, had expressly considered the effect of accumulation on the non-parole period, and had adjusted the drug offence sentence to restore the statutory ratio. Prior convictions that were on appeal at the time of sentencing were subsequently the subject of dismissed appeals, and the Court held it was entirely appropriate that they had been taken into account.

Orders Made

  • Appeal against convictions dismissed
  • Leave granted to appeal against sentences
  • Each appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the repeal of the Firearms Act 1989 did not extinguish the basis for prosecuting offences allegedly committed under that Act, as the pre-repeal operation of the legislation was preserved by section 30 of the Interpretation Act 1987.
  • An irregularity in the evidence placed before a jury does not automatically result in a miscarriage of justice; the court must assess whether the irregularity had actual consequences for the outcome.
  • Post-conviction remarks by a trial judge do not of themselves establish bias or give rise to a reasonable apprehension of bias, as the Court of Criminal Appeal found here.
  • Upholding the sentences, the Court confirmed that where a sentencing judge expressly directs attention to the effect of accumulation on the non-parole period and adjusts for the statutory ratio, no error in the accumulation exercise arises.
  • Prior convictions that were the subject of pending appeals at the time of sentencing may nonetheless be taken into account, particularly where those appeals are later dismissed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900, s 352 (now repealed)
- Crimes Act 1914 (Cth), s 29D
- Crimes (Sentencing Procedure) Act 1999, s 44(2)
- Criminal Appeal Act 1912, s 5F(3)
- Criminal Procedure Act 1986, ss 20(1), 21(1), 29, 66, 205, 206, 208
- Drug Misuse and Trafficking Act 1985, ss 23(2), 38, 43
- Evidence Act 1995, ss 20(2), 114, 116, 138, 189
- Firearms Act 1989, s 5(a), Regulations 98 and 98A
- Firearms Act 1996
- Interpretation Act 1987, s 30
- Jury Act 1977, cl 8 Schedule 2
- Mental Health (Criminal Procedure) Act 1990, ss 9, 10
- Search Warrants Act 1985, Part 2 (now repealed)
- Justices Act 1902 (now repealed)

Cases:
- Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
- DPP v Nassif [2002] NSWSC 1065; 135 A Crim R 391
- Dietrich v The Queen [1992] HCA 57; 177 CLR 292
- House v The King [1936] HCA 40; 55 CLR 499
- Jones v Dunkel [1959] HCA 8; 101 CLR 298
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Barbara [1997] NSWCCA (unreported, 24 February 1997)
- R v Hass [1972] NSWCCA (unreported, 30 June 1972)
- R v OGD (1997) 54 NSWLR 744
- R v O'Meara [2001] NSWCCA 201
- R v Tier [2001] NSWCCA 53; 121 A Crim R 509