O'CONNOR v REGINA

CASES CITED: Regina v O'Connor [2005] NSWCCA 5 R v Lawrence [1980] 1 NSWLR 122

PARTIES: Anthony Ross O'CONNOR REGINA

COUNSEL: Appellant: In person Crown: T W Thorpe

SOLICITORS: Appellant: Legal Aid Commission Crown: Director of Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL CCA 2007/1148

MASON P JAMES J HISLOP J

Monday 10 September 2007 Anthony Ross O'CONNOR v REGINA Judgment

1 MASON P: On 1 September 2003 the appellant was indicted in the District Court on a charge of wounding with intent to murder, alternatively malicious wounding with intent to do grievous bodily harm. Having pleaded not guilty he was tried before Ducker ADCJ and a jury. On 8 September 2003 the jury found him not guilty on the primary count, but guilty on the alternative count. 2 On 25 November 2003 the appellant was sentenced to imprisonment for 11 years commencing on 22 July 2002 with a non-parole period of eight years and three months. An appeal against sentence was heard and dismissed on 31 January 2005 (Regina v O'Connor [2005] NSWCCA 5). 3 This appeal was commenced by filing of a Notice of Appeal on 2 May 2007. I shall say something below about the circumstances in which an application for leave to appeal against sentence with its ensuing appeal was heard and determined over two years before the present appeal against conviction was instituted. 4 The charges arose out of an incident in July 2002 in the flat occupied by a young man named Stephen Maher. Two friends, Guy Murdoch and the victim, Mark Whittaker, were all significantly intoxicated by alcohol when they returned to the flat. The appellant, who knew Maher and Murdoch (but not the victim), was waiting to see them when they returned. He too had been drinking. All four men went inside and began to drink more alcohol. 5 The appellant began to behave aggressively, particularly towards the victim. He also threatened and pushed Maher, who decamped by jumping off the veranda. 6 The victim said that the men were sitting drinking when the appellant started getting aggressive, asking repeatedly: "what are you looking at?" After Maher and Murdoch ran out of the premises the appellant kicked the victim in the right eye and smashed a large ashtray across his head causing it to break. The appellant then used a large jagged section of the ashtray to make a ferocious attack around the victim's temple. At one stage the appellant was squeezing the victim's throat while trying to cut him with the jagged section of the ashtray. The victim managed to escape, bleeding profusely and leaving behind his jumper and T-shirt. There was medical and photographic evidence establishing that the victim suffered severe lacerations to the head and face as well as to the hand, shoulder and upper arm. A doctor described the wounds as "quite deep". He said that the joint and/or bone was on view on the shoulder and that the arm wound was down to and into the muscle of the limb. 7 Murdoch witnessed the appellant becoming aggressive. He saw him grab the victim by the throat and threaten him, but left the flat before the fight. 8 Maher said that he had been drinking with the victim at various locations. He was present when the appellant started to become aggressive and make threats. He tried to settle the appellant down and was pushed by him into his bedroom. He then ran away through the verandah because he was scared. that, as he was leaving, he could hear "punching and stuff going on". He expressed the view that the appellant did not appear himself to be drunk. 9 The appellant gave evidence that he was taking Temazepam to help him sleep and that his doctor had told him that he should not drink whilst on this medication. Notwithstanding, he started drinking at about midday on the day in question. His version of the incident was that the group of men arrived at the flat where he was sitting on the steps, hoping to be able to stay the night. He was introduced to the victim. Beer was consumed inside the flat. According to him, Murdoch ("Guyser") left suddenly and without explanation. He was confused as to why this happened. He heard his name being called by Maher ("Stevie"). Then he turned around to find the victim standing right in front of him. He felt threatened and confused. The victim had a bottle in one hand and his hands were raised. The appellant grabbed him by the front of his shirt and knocked away the hand holding the beer. There was a scuffle and wrestling. The victim's hands were around his face and neck. He was kicked in the testicles. He flipped the victim onto his back and in the course of doing so, turned the coffee table upside down. He denied hitting the victim with the ashtray at any time. He denied threatening to kill or saying anything like that. In cross-examination, he was challenged about whether he really had taken Temazepam at that stage in the evening. He denied any knowledge or intent with regard to the broken ashtray being put in the bin where it was found by the police. 10 The substantive issues raised at the trial were whether the jury were satisfied that the appellant acted with one or other of the specific intents charged in the two alternative counts; and the issue of self defence without use of excessive force. The jury were given directions as to intoxication (of which more later). 11 The appellant represented himself in the appeal and relied principally upon written submissions that raised 10 grounds of appeal. None of the grounds succeed and several of them are completely misconceived. Ground 1: Trial unfair because the Crown failed to provide the entire brief of evidence prior to the trial 12 This complaint relates to the fact that the appellant had to issue a subpoena to gain access to certain documents from the Crown. His counsel at trial made no complaint suggesting that these ought to have been in the brief. The documents were produced and inspected and the trial proceeded without concern on this matter. 13 There was no miscarriage of justice.

Ground 2: Failure to prove intent to cause grievous bodily harm 14 The appellant rightly submits that the prosecution had to prove this specific intent as regards the second count. He is wrong in asserting that this did not occur. The nature and extent of the serious wounds inflicted on the victim were eloquent of the requisite intent. The medical evidence demonstrated that the wounds were many and deep. Furthermore, the assaults were preceded with the appellant telling the victim, according to the latter's evidence: "You're dead. You're gone". 15 The judge had directed the jury about the need to be satisfied to the requisite standard about intent to cause really serious bodily harm and the subjective nature of their inquiry. Nothing implied that they could reason simply from the "natural and probable consequences of the acts", as suggested by the appellant. 16 This ground is not made out.

Ground 3: Failure to prove capacity to form the intent despite intoxication 17 The appellant's evidence about his drinking and the taking of Temazapam is set out above. No expert evidence was led about the possible impact of this cocktail. 18 Following a jury question about Temazapam, the appellant was granted leave to reopen his case to allow the tender of an agreed extract from MIMS about the drug's properties. The material was tendered on the basis that the prosecution did not accept its relevance on the facts of the case, in light of the appellant's own evidence that he was fully aware of what he was doing (see Tr 4/9/03 pp254-5 and Tr 5/9/03 pp15-16). 19 Directions were given in the summing up, without complaint at trial, about the need for the jury to be satisfied that the appellant formed the requisite intent. At the request of the appellant's counsel, the judge redirected on the issue of intoxication. The jury were told that they were entitled to take the question of the degree of intoxication into account on the question whether the accused formed the requisite intent. 20 In my view, it was well open to the jury to find that intention to inflict grievous bodily harm had been proved.

Ground 4: Error in permitting police officer to read his statement as evidence in chief 21 Without objection, a police witness gave evidence in chief by reading a statement he had made five days after the event. The appellant does not suggest that his trial miscarried on this account. He merely submits that this method of giving testimony was not the same as referring to or refreshing memory from contemporaneous notes. What occurred was permitted by s33 of the Evidence Act 1995. This ground is without merit.

Ground 5: Misdirection by reference to "drunkenness" rather than "intoxication" 22 Very early in the trial (Tr 1/9/03 p15) the judge told the jury that: Drunkenness is not per se, that is, of itself, a defence to a criminal charge, but in both of these charges, not one, as I told you before, but in both these charges there is involved what is known in law as a special intent and the consumption of alcohol and the effects coming therefrom is a matter which a jury will need to consider when determining whether the accused had the requisite intent in both charges. 23 The appellant complains that the judge should not have used the word drunkenness as distinct from intoxication. 24 During the summing up on Friday 5 September 2003 the prosecutor reminded the judge of s428G of the Crimes Act 1900. The following ensued in the presence of the jury (SU Tr 5/9/03 pp16-17): HIS HONOUR: Yes there has been a relatively recent amendment members of the jury which sometimes old judges do not keep up. What is said is correct that drunkenness does not apply as to the question as to whether or not the act of the accused was voluntary. As long as he inflicted the wound is enough. But it does apply to the question of intent. POLAK: In relation to that your Honour, it is intoxication not drunkenness. HIS HONOUR: Well intoxication yes. POLAK: They are not interchangeable concepts. HIS HONOUR: No intoxication may be. Just to make sure the jury clearly understands the situation. When it comes to deciding whether the accused's act in causing the wound was deliberate, then intoxication does not come into it. In deciding whether he had the specific intent to murder or on the second count the specific intent to cause grievous bodily harm, then it is something that has to be considered on the question as to whether he did in fact form that intent. Anything else? CROWN PROSECUTOR: No your Honour thank you. POLAK: No your Honour, thanks. 25 On Monday 8 September 2003 counsel for the appellant sought and obtained a further direction in relation to intoxication (SU Tr 8/9/03 pp53. 58-9). 26 The appellant does not indicate in his submissions why the ultimately corrected slip eliding "drunkenness" and "intoxication" might have caused some miscarriage. None occurred.

Ground 6: Error in delayed raising of alternative verdict of malicious wounding 27 During the summing up on 8 September 2004 counsel for the appellant asked the judge to inform the jury that they could, in the alternative, find a verdict of malicious wounding (see Crimes Act, s34). The Crown prosecutor agreed and the jury was directed accordingly (SU Tr 8/9/03 pp57-8). 28 In the absence of this matter having been raised earlier by counsel for the appellant, it was not incumbent on the judge to have informed the jury earlier. Appropriate directions were given at the appropriate time. 29 This point has no substance.

Ground 7: Error in directing the jury that a verdict of not guilty was not a finding of innocence 30 In the course of directing the jury that the onus of proof remained upon the prosecution throughout, his Honour said: The fact that the accused gave evidence in this case does not change that. He was under no onus to prove anything in the case, least of all his own innocence. Criminal trials are not about the proof of innocence, they are about the proof beyond reasonable doubt of guilt. A verdict of not guilty is not a finding of innocence, it is merely a finding by the jury that having considered the whole of the evidence it could not be satisfied beyond reasonable doubt that the accused committed the crime. All accused persons for the purposes of their trial are presumed to be innocent of the offence until such time as the prosecution can produce evidence which persuades the jury that the accused in fact did commit the offence.

31 The appellant submits that this direction inferred that there was some degree of guilt simply because the charge had been laid and there was a trial. This submission is entirely lacking in substance. The direction contained no such inference. Neither had it been the subject of complaint at trial.

Ground 8: Error in admitting hearsay evidence of a conversation with Mr Maher 32 Mr Maher gave evidence, over objection, about a conversation with the victim whom he visited in hospital. This took place on the morning after the incident at the flat. According to Maher, Mr Whittaker told him that after he (Maher) had left, the accused had bashed him with the big blue ashtray. The assault had come to an end when Whittaker dropped to the ground, the accused stopped and Whittaker "got up and put the knee in". 33 The judge ruled that the evidence was admissible pursuant to s66 of the Evidence Act on the basis that Maher was giving evidence about what he heard at a time when the occurrence of the fact asserted in the representation was fresh in the memory of the victim. Alternatively the evidence was ruled admissible under s108(3). An issue had been raised as to the credit of the complainant by putting to him the suggestion that his version of how the injuries were sustained was untrue. Leave was granted to adduce the evidence from Maher on the basis that it was a prior consistent statement from Mr Whittaker. 34 The appellant does not develop his argument as to why the hearsay evidence was inadmissible. In my opinion it was, on either of the two bases referred to. 35 It is submitted in the alternative that the judge should have given directions and warnings to the jury in relation to this matter. None were sought. I perceive no miscarriage in this regard. The jury were entitled to have regard to this probative evidence of an unprompted assertion by the alleged victim not long after the events in question that was consistent with his sworn testimony.

Ground 9: Error in telling the jury that they should ask for further assistance if they required any further directions 36 This ground has no merit.

Ground 10: Verdict unreasonable and unable to be supported, having regard to the evidence 37 The question for this Court is whether it considers that, upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The Court must consider the totality of the evidence, recognising that the jury is the body entrusted with the primary responsibility of determining guilt and that the jury had the benefit of having seen and heard the witnesses. 38 In my view it was well open to the jury to find guilt having regard to the evidence summarised above, in particular, the evidence of the victim and the severe injuries that he suffered. 39 The appellant submits that there were serious inconsistencies in the evidence of the witnesses and that this was recognised by the trial judge who arranged for the whole transcript to be provided to the jury "so comparisons can be made of the evidence given". The only matters developed by the appellant concern irrelevant discrepancies about matters of timing and the fact (commented on during sentence) the victim's friend decamped, leaving him to be bashed. These were not central to a case that rested primarily upon the evidence of the victim corroborated as it was by the medical evidence. The fact that Maher and Murdoch left the premises is of no moment to the issue of what happened in their absence. 40 The appellant next points to the absence of evidence to establish that the blood on the blue ashtray was that of the victim. During the proceedings after conviction the trial judge indicated that he was appalled by the failure to analyse the blood that was found on the weapon. In latching onto this comment, the appellant misunderstands that the judge was expressing a forceful view about police procedure. If the police had caused the blood on the ashtray to be analysed and found it to be the victim's then this may have destroyed the defence case. But such evidence was not an essential part of the Crown case. It was common ground that there was a struggle between the appellant and victim. An agreed statement of facts (Exhibit L) indicated that it was common ground that blood with the same DNA profile as that of the victim was found on the appellant's left shoe. 41 Mr Whittaker was seriously injured. The issue was whether the Crown could prove that the appellant had acted deliberately, with the necessary intent, and not by way of self-defence. The medical evidence was that some of the injuries to the victim were inconsistent with the accident as recounted by the appellant in his evidence, but consistent with the slashing that the victim deposed to. 42 There was no evidence that the appellant bled at the scene. The inescapable inference that it was the victim's blood on the ashtray was capable of being drawn without a scientific analysis. 43 Next it is submitted that there was no evidence linking the appellant to the alleged weapon. The point appears to be that there were no forensic or DNA tests in this regard. There was however the evidence of the victim which, if accepted, established beyond doubt that the appellant had used the ashtray as a weapon. A similar riposte may be offered with regard to the appellant's submission that there was no evidence of the appellant's fingerprints at the scene. 44 Finally, the appellant submits that there was no evidence such as evidence of a thumb mark relating to bruising on the neck or throat consistent with the victim's evidence of the fight. 45 Dr White had been shown photographs of the victim taken five days after the incident. He conceded that there was no distinct thumb mark depicted in those photographs. He also accepted that nobody in the medical notes had noted any neck injuries or thumb prints on the neck. 46 As the Crown submits, when the victim presented at the hospital he had severe injuries and had apparently lost a great deal of blood. The jury could well have come to the view that there was an attempt at strangulation but that the medical staff failed to see any evidence of it. 47 This particular gap in the Crown case does not mean that it ceased to be open to the jury, acting reasonably, to find the offence proved. 48 Accordingly, each ground of appeal fails. 49 The appellant requires an order extending time in relation to the Notice of Appeal challenging the conviction (Criminal Appeal Rules, r3B). 50 In order to dispose of the matter finally I would grant the extension of time but dismiss the appeal, for the reasons stated above.

A procedural nightmare 51 The jury rendered their verdict on 8 September 2003. Sentencing took place on 25 November 2003. 52 On 1 December 2003 the appellant filed a Notice of Intention to Appeal specifying his intention to challenge both conviction and sentence. This notice was extended at the request of the Legal Aid Commission but expired on 3 November 2004 (Criminal Appeal Rules, r3A). 53 The following information has been obtained from the records of the Court of Criminal Appeal. 54 "Grounds of Appeal" relating to sentence were filed on behalf of the appellant by the Legal Aid Commission on 30 July 2004. 55 On 30 July 2004 submissions were filed in the "Severity Appeal", prepared and signed by counsel. 56 The matter was mentioned on 16 August 2004, when the Registrar was told that there was an outstanding appeal to the Legal Aid Review Committee. It may be inferred that this appeal related to the appellant's failure to obtain legal aid to challenge the conviction. 57 On 13 September 2004 the matter was fixed for hearing as a sentence appeal. 58 The appeal against sentence was heard and determined on 31 January 2005. A court comprising Sully J and Kirby J granted leave to appeal against sentence but dismissed the appeal (see Regina v O'Connor [2005] NSWCCA 5). 59 On 15 March 2006 the appellant wrote to the Registrar of the Court of Criminal Appeal complaining that his counsel had failed to raise certain matters at the sentencing appeal. The appellant also asked why he had not heard anything in relation to his appeal against conviction. 60 The Registrar responded on 20 March 2006 advising that the appellant would need to seek an extension of time to appeal against conviction. Nothing further was heard until the appellant filed a Notice of Intention to Appeal on 20 July 2006. This was extended in January 2007, to expire on 4 May 2007. 61 Appeal documents relating to conviction were received in the registry on 1 May 2007. They did not include a Notice of Appeal. Such a Notice was sought and received on 2 May 2007. The appeal documents include a covering letter and an affidavit seeking to explain the appellant's delay. The affidavit states that the appellant never wished to abandon his right to appeal against the conviction. The delay in prosecuting that appeal is said to stem from his lack of legal training and difficulties experienced in relation to preparing requisite documents. 62 This is the third occasion in which I have sat on the Court of Criminal Appeal in a similar situation. An appeal against sentence was listed, heard and determined by a particular bench only to be followed (after considerable delay) by an application to challenge the conviction itself. I cannot recall whether the previous matters involved an earlier severity appeal or a Crown appeal against sentence, but nothing turns on this, in my view. 63 These applications involve a wasteful duplication of legal and judicial resources. Separate counsel and a differently constituted Court of Criminal Appeal have to master the factual issues upon which the conviction stands. Had the instant appeal succeeded with the conviction being quashed, whether or not a new trial were ordered, the earlier sentencing appeal that engaged the attention of Sully and Kirby JJ and the barristers and solicitors engaged in it would have been a futile waste of time. 64 The extension of time proposed in the appellant's favour in this particular case proceeds on the basis that the situation is unclear and the extension of time unopposed. There has been no challenge to the affidavit seeking to explain how the appellant came to file a notice of appeal over two years after his sentencing appeal was heard and disposed of.

65 An appellant should understand that (without an order based on extraordinary circumstances clearly proved) neither a Notice of Intention to Appeal nor a Notice of Appeal will be permitted to be filed out of time after a sentencing appeal has been heard and determined; and that any application for an extension of time to allow this to take place will be closely scrutinised. Unless the application is demonstrably meritorious it is likely to be refused, especially if the sentence matter has already been dealt with without any prior indication from the appellant of his or her intention to challenge the conviction itself. It should not be assumed that any and every breach of the time limits in the Rules will be excused (see generally R v Lawrence [1980] 1 NSWLR 122 at 147-8). 66 JAMES J: I agree with Mason P. 67 HISLOP J: I agree with Mason P.

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