R v O'Connor [1980] HCA 17

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. R v O'Connor [1980] HCA 17

Cur. adv. vult.

The following written judgments were delivered:—

1980, June 20 Barwick C.J.

The respondent to this application by the Attorney-General of the State of Victoria for special leave to appeal was indicted before the Supreme Court of that State on two counts: one of stealing (Crimes Act 1958 Vict., as amended, s. 72), the other, under s. 17 of that Act, of wounding with intent to resist arrest. He was acquitted of these charges by the jury but found guilty of an alternative charge made available by s. 423 of that Act. That section provides as follows:

Where on the trial of any person for any felony except murder or manslaughter the presentment indictment or information alleges that the defendant did wound any person or did cause grievous bodily harm to any person and the jury are satisfied that the defendant is guilty of the wounding or of inflicting the grievous bodily harm charged in such presentment indictment or information but are not satisfied that the defendant is guilty of the felony charged they may acquit him of such felony and find him guilty of unlawfully wounding or of inflicting grievous bodily harm (as the case may be); and he shall be liable to punishment accordingly.

The circumstances of the case were that the respondent was observed by a neighbour pilfering a car owned by an officer of the Victoria Police. The car was standing outside the block of flats in which the officer resided. The neighbour alerted the officer to what was going on. By the time the officer reached his car the respondent had removed from it a map holder and a knife. The officer, having identified himself to the respondent, asked the respondent why he took from the car the map holder. The respondent apparently made no response and ran away. The officer caught up with him to arrest him. During the course of his arrest, the respondent opened the blade of the knife he had taken from the car and, seemingly in an endeavour to resist arrest, stabbed the constable. At this time, the respondent said: "I don't know anything, I wasn't there."