Citation: O'Connor v Regina [2007] NSWCCA 266
Court: New South Wales Court of Criminal Appeal
Date: 10 September 2007
Judge(s): Mason P, James J, Hislop J
Background
The appellant was tried in the District Court in September 2003 on a charge of wounding with intent to murder, with an alternative charge of malicious wounding with intent to cause grievous bodily harm. The jury acquitted him on the primary count but convicted him on the alternative. He was sentenced in November 2003 to 11 years' imprisonment with a non-parole period of eight years and three months.
The appellant appealed his sentence, and that appeal was heard and dismissed in January 2005. More than two years later, in May 2007, he filed a Notice of Appeal against the conviction itself. He appeared in person, relying on written submissions raising ten grounds of appeal.
The underlying incident involved a late-night confrontation in a flat where the appellant, significantly intoxicated, attacked the victim with a broken ashtray, inflicting severe and deep lacerations to the victim's head, face, shoulder, arm and hand. The central issues at trial were whether the appellant possessed the requisite specific intent and whether he acted in self-defence.
Legal Issues
- Whether the Crown had failed to provide the entire brief of evidence prior to trial, rendering the trial unfair
- Whether the Crown had proved the specific intent to cause grievous bodily harm
- Whether the appellant's intoxication (including a combination of alcohol and Temazepam) negated the capacity to form the requisite intent
- Whether the trial judge's directions on intoxication and intent were adequate
- Whether an extension of time to file a notice of appeal against conviction should be granted where a sentence appeal had already been heard and determined more than two years earlier
- Whether the piecemeal prosecution of sentence and conviction appeals, in a sequential and disjointed fashion, is an appropriate use of appellate resources
Decision
The Court dismissed all ten grounds of appeal, finding several to be entirely misconceived. On the brief of evidence complaint, the Court noted that trial counsel had made no complaint at the time, the documents were produced on subpoena, and the trial proceeded without difficulty. No miscarriage of justice arose.
On intent, the Court found the evidence clearly capable of supporting the jury's verdict. The nature and extent of the wounds, described by medical witnesses as deep and exposing bone and muscle, was itself indicative of the requisite intent. The appellant had also told the victim "You're dead. You're gone" before the assault. The trial judge had correctly directed the jury on the subjective nature of the intent inquiry, and there was nothing to suggest the jury reasoned impermissibly from "natural and probable consequences."
On intoxication, the Court was satisfied the jury had been properly directed, and at defence counsel's request the judge had redirected specifically on the relevance of intoxication to intent. The jury was entitled to find, on the evidence, that the requisite intent had been formed despite the appellant's consumption of alcohol and Temazepam. No expert evidence had been led about the combined effects of those substances.
Mason P used the occasion to address the procedural irregularity of the sequenced appeals. Although the extension of time was granted in this instance because it was unopposed and the circumstances were unclear, his Honour deprecated the practice of pursuing a conviction appeal years after a sentence appeal has been resolved. He indicated that future applications of this kind would face close scrutiny and would likely be refused unless demonstrably meritorious, particularly where no prior indication had been given of an intention to challenge the conviction.
Orders Made
- Appeal dismissed
Key Takeaways
- All ten grounds of appeal against conviction failed; several were described as entirely misconceived, including the complaint about the brief of evidence where no trial objection had been raised and the trial proceeded without disruption.
- Sufficient evidence of specific intent to cause grievous bodily harm existed where the wounds were numerous, deep, and accompanied by express verbal threats made immediately before the attack.
- A jury direction on intoxication and intent satisfies the applicable standard where it identifies the subjective nature of the inquiry and, at defence request, specifically addresses the relevance of the accused's degree of intoxication to the formation of intent.
- Filing a conviction appeal years after a sentence appeal has been heard and determined creates wasteful duplication of legal and judicial resources: separate counsel and a differently constituted Court of Criminal Appeal must re-master the factual background, and if the conviction appeal succeeded, the earlier sentence proceedings would have been entirely futile.
- The Court of Criminal Appeal indicated that future out-of-time conviction appeals filed after the conclusion of a sentence appeal will face close scrutiny and are likely to be refused unless demonstrably meritorious, with no assumption that breaches of time limits will be excused.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW)
Cases:
- Regina v O'Connor [2005] NSWCCA 5 (the earlier sentence appeal in this matter)
- R v Lawrence [1980] 1 NSWLR 122